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/^ : . 'o.
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PROCEDURE
^tannariesE of Comtoan antr Sebom
PROCEDURE
IN THE COURT OF THK
Witt WBax^tn of t^t Stannaries.
NEW ORDERS, RULES, AND FORMS,
WITH AN
APPENDIX OF STATUTES,
AND
AN INTBODUCTORT NOTICE ON THE
JURISDICTION OF THE COURT IN RELATION TO MINING
COMPANIES.
2p atitftontp*
LONDON .
H. SWEET, 3, CHANCERY LANE, FLEET STREET.
STEVENS & NORTON, 2(5. BELL YARD, lA«CO\.^'S \^^.
1850.
LOVDOV :
KAVWKE AND BODORII, PRINTKRM,
JOj>, Prtt«r l^ane. Fleet Street.
INTRODUCTORY NOTICE.
The extended jurisdiction and enlarged powers
conceded to the Court of the Vice Warden by the
recent Act of Pariiament (18 Vict. ch. 32.) have
made it expedient that the Rules and Orders of the
Court should undergo revision ; and this measure
has become the more desirable because in the in-
terval of twenty years which have elapsed since
the Court was put on its present footing very im-
portant improvements have been introduced into
the procedure of the superior Courts, some of which
can be usefully engrafted on the practice of a
Court of hmited jurisdiction.
Another consideration has also prompted the
publication of the following Rules and Orders.
Upon the reform of the Stannary jurisdiction in
1836, the common law courts had fallen into
practical desuetude, and the equitable jurisdiction
had been assailed by heavy litigation, in the course
of which its existence had been called in question.
b
VI INTRODUCTORY NOTICE.
The existence of such a Court of Equity was indeed
affirmed by the Act of 6 & 7 Wm. 4. c. 106; but that
act did very little towards ascertaining either the
nature or limits of its operation; and the first
officers of the new Court had to mould and to
work out a practice with very scanty materials for
their guidance and many vicigus precedents on the
files of the Court, which could not safely be
adopted.
It is not surprising therefore, that, in a state of
things where every step taken was experimental,
the Court and its professional assistants started
with a remarkably slender and imperfect stock of
written rules of procedure. The modem practice
of the Court has, in fact, chiefly grown out of the
decisions of the late Vice Warden during seventeen
years of his official life, and became known only to
those gentlemen who habitually practised in the
town to which his sittings were confined.
The extension of the Court into Devonshire, and
the provision for its ultimate sittings in that county,
have made it evidently proper that the course and
practice of the Court should become better and
more widely known. It is felt that means should
be afforded to the suitors and their legal advisers
to make themselves fiilly acquainted with the
remedial functions of the Court ; with its specific
action on the mining interests; and with the forms
INTRODUCTORY NOTICE. Vll
of procedure usually adopted in it for the eflScacious
application of those remedies.
It would be unjust to the memory of the very
able and learned predecessor of the present Vice
Warden to withhold from him the great merit of
having educed from materials so scanty a system
which, especially on the equity side, rendered for
many years valuable assistance both to the adven-
turers and the merchants of Cornwall. The fol-
lowing Rules and Orders may be regarded as a
further developement of the practice as established
by him.
If that system laboured under some imperfec-
tion, — if the powers of the Court were daily becom-
ing less effective because the circle of adventurers
was daily spreading beyond the narrow limits of
the district for which the Court was created, and
beyond which its compulsory process did not
extend, — the imperfection was one to which the
late Vice Warden was no willing party. The suitors
owe it to the good will, and active support of His
Royal Highness the Lord Warden and of the
Council of the Prince that such defects have been
now amended, and a degree of efficiency conferred
by the legislature on the process of Court which must
tend to enlarge the sphere of its useful operation.
With respect to the jurisdiction as established
under the Act 6 & 7 Wm. 4. c. 106., some observa-
b 2
VIU INTRODUCTORY NOTICE.
tions on it will not be misplaced by way of intro-
duction to the following Rules and Orders.
The provisions of that Act, on which the powers
of the Court now mainly depend, are the 4th, 6th,
7th and 41st sections. The effect of these clauses
will be found to be substantially as follows : —
The original equitable jurisdiction, lawfully exer-
cised by the Vice Warden before that Act, is thereby
vested in the Vice Warden appointed under it, who
is to have the same equity ^'jurisdiction and autho-
rity^' '^ so far as relates" to working metallic mines
and searching for and smelting the ores as if the
same had related to tin mines or tin.
The common law jurisdiction of the Steward's
Courts, as theretofore lawfully exercised, is vested
in the Vice Warden, who is to have the same juris-
diction and authority in all matters ''in any way
connected with'' the working of metallic mines and
searching for, smelting, &c., as if the same had
been connected with, or related to, tin mines or
tin.
There are further general provisions for vesting
in the Vice Warden all powers before lawfully
exercised by former Vice Wardens or stewards,
and a general saving (section 43) of all statutes,
liberties, customs, rights, &c., not inconsistent with
the law of the land or with that Act.
Hence the fundamental authority of the Court
INTRODUCTORY NOTICE, IX
can only be ascertained by reference to the an-
tecedent legal powers of the Vice Warden and
stewards of the Stannaries at a time when the
franchises were confined to tinners and tin works.
It is clear that the Common Law jurisdiction was
founded on immemorial user, declared and confirmed
by certain charters of the 13th and 14th centuries.
The most important of these is the charter of 33
Edward 1.*
It is well known that the language of this charter
has been the subject of frequent explanatory expo-
sitions^ parliamentary, judicial, and extrajudicial.
Of these, the most important are to be found
recorded in Lord C. J. Coke's4th Institute (p. 231),
in a resolution of the judges, extrajudicially con-
sulted (as was then common) by the Crown in the
reign of Charles lst,t and in the public statute
16 Car. 1. c. 15.
By the aid of these authorities, confirmed by
the uniform practice of the Stannaries, and of
the Court which, for the last twenty years, has
succeeded to the ancient common law jurisdic-
tion there, and substituting all metallic mines
• See a copy of it in Appendix to Vice v. Thomas^ p. 14.
f Appendix to Vice v. Thomas^ pp. 35, 36. The Resolu-
tions in 7 Car. 1., have been preferred to those of 3 Car. 1.,
as being later in point of time. Half of the subscribing par-
ties to both are the same persons, although the resolutions
are not easily to be reconciled.
X INTRODUCTORY NOTICE.
and minerals in the place of tin and tin mines, it
is believed that the following wiU be found to be a
correct description of the present jurisdiction of
the Court : —
The Court has jurisdiction and cognizance on
the common law side thereof in, over, and of,
all personal actions in which one or both parties
are miners under the following circumstances
and conditions, that is to say, —
1. Where the plaintiff, being a miner, sues a
person, not a miner, for any cause of action arising
within the Stannaries, or touching mines of metal-
lic minerals within the Stannaries, or adventurers
in such mines ;
2. Where the plaintiff, not being a miner,
sues a miner for any such cause of action above
described ;
3. Where a miner sues another miner for any
transitory cause of action, whether arising within
or out of the Stannaries, and whether it relates to
such mines and adventures or not.
In all the above cases the Court can only effec-
tually exercise jurisdiction when the defendant can
be served with process within its territorial limits,
that is, within the Stannaries of Cornwall or Devon.
The above definition is confined to personal
actions. That of ejectment is now entertained by
INTRODUCTORY NOTICE. XI
authority of Act 18 Vict. c. 82. s. 15., in which it
does not appear that either plaintiff or defendant
need be, or be alleged to be, a miner; but the
subject-matter of the action must necessarily relate
to mines.
The exclusion of all questions touching the
freehold from the cognizance of the Court is
implied in the charter referred to, and will be
again noticed hereafter.
The common law jurisdiction is still inadequately
defined without adding some explanation of the
meaning of the word " miner'^ in the charters.
This too has been the subject of much discussion,
of which traces are to be found in the roUs of
Parliament, in the bylaws or declaratory present-
ments of the Stannary convocations, in the extraju-
dicial resolutions already referred to, and in some
judicial decisions or dicta in the printed reports.
It seems that some, at least, of the privileges
granted to tinners by the Crown were considered
to belong to them only in the character of tinners
actually toorking upon the mines, and therefore
presumably unable to be attendant as suitors in
distant Courts without interruption of their labours
and injury to the EarFs or Duke's ad valorem coin-
age duty on tin. Of this nature is the franchise
of exemption from the process of any jurisdic-
tion, except that which the charters profess to vest
XU INTRODUCTORY NOTICE.
in the Warden of the Stannaries for the general
benefit of the '^ Stannatores operantes" and only
*^dum operantur;'' and this exemption, as well as the
old exemption from tolls and talliages, has never
been claimed for any but strictly working tinners.
But in other cases, where the franchise touches
only the power of the Warden or his deputies to
entertain suits by or against or between tinners
without claiming exclusive cognizance, the charter
of 33 Edw. 1. is capable of a construction which
admits of a more liberal application of the term
"miner/' Very learned treatises are extant, in
which the larger use of the word is supported
with great plausibility. These treatises and other
manuscript collections relating to Stannary juris-
diction appear to have been composed in the reign
of Jac. 1. and Chas. 1., at a time when a flood
of prohibitions, issuing from the superior Courts
of common law, testify the judicial tendency of
those times to narrow, or to absorb, all other
jurisdictions whether subordinate, or even co-
ordinate. Perhaps the Courts of the Duchy
of Cornwall, then and for many centuries in-
timately connected with the revenues of the
Crown or the Prince, suffered less than other
inferior Courts ; for the forms of Stannary process
and the singular and abnormal provisions for ap-
peal still survive, with very slight alteration, and
INTRODUCTOEY NOTICE. XIU
bear testimony to the successful retention of
forms which* have disappeared in other instances,
and of an exemption from revision by writ of error
or false judgment, which can be claimed by no
other inferior Court of common law at this day.
In aid of this wider construction of the franchises
confirmed to the tinner, there is the stronger testi-
mony of the rolls of the Steward's Court themselves,
which exist in great abundance among the rolls
of the Exchequer, and record the usage of five
centuries. In these we find nothing to support so
narrow a definition as some have sought to attach
to the " Stannator" of the old charters ; but per-
sons of all ranks, civil and ecclesiastical, appear in
them as suitors.
This practice has continued to the present time,
and if it be well founded, then it may perhaps be
laid down in general terms that, —
All persons are miners, so as to come within the
jurisdiction of the Court, when and so long as they
are really engaged in searching for or working
mines of tin or other metallic minerals within the
Stannaries, "whether such works be underground
or superficial; or in making merchantable tlie
produce thereof; and whether they be so engaged
as labourers, worlimen, agents, or adventurers
therein.
^3
XIV INTRODUCTORY NOTICE.
Whether this definition of a miner may not admit
of still further enlargement is a matter which may
be considered open to inquiry. The resolutions of
the judges in 7 Car. 1. would seem to sanction a
wider extension of its legitimate import.* There
* The earlier Stannary rolls of the Stewards seem to have
been deposited in the Exchequer as vouchers of the accounts
annually received and audited by the officers of the King*s
Exchequer by authority of special writs for that purpose. One
of the earliest rolls, 49 Ed. 3., has an entry of a plea in the
nature of a replevin suit by one tinner against a defendant
who was not one, for an unjust taking of cattle on a tin-
work : Vice v. Thomas, Appendix, pp. 63, 64. The meaning
of the term " miner" was attempted to be defined by the
Stannary Convocation, 30 Eliz. (Ibid. pp. 50^ 51), and by
those of 22 Jas. 1., Art. 12. 14., and 12 Charles 1., Art. 5.
See also Adams v. Warden of the Stannafnes, Cro. Car. 333.,
1 Roll. Ab. 548, and 2 Roll. Ab. 314 ; and Reignol v. Taylor,
7 Mod. Rep. 103. This last case probably relates to some
manor Court, and not to a Stannary Court, from which no
writ of error lies. The cases, or case, (for they seem iden-
tical) in RoUe's Abridgment relate to the customary Court
of the duchy and manor of Calstock, and not to any Stannary
Court. The dictum attributed to Noy, Attorney General,
in Adams v. Warde^i of the Stannaries, that the jurisdiction
is " only for tin matters,'* is irreconcileable with the resolu-
tion to which he was a party only two years before, and is
probably a mistake of the reporter. Indeed, the books
rarely report a case touching the Stannaries without some
manifest mistake. Even Lord Chief J ustice Coke gives as
the style of the Stannary Court the caption of a convocation
or assembly of tinners at Crockern Tor, which was not a
Court of judicature at all (4 Co. Inst. p. 229). In the
INTRODUCTOEY NOTICE. XV
can be little doubt that the owner of tin-Bounds,
where that species of interest can be legally recog-
nised^ would have been deemed a privileged Stan-
nator, according to the ancient usage^ when such
bounds are duly worked.
It will be observed that the common law
jurisdiction is not wholly dependent on the subject-
matter of the suit, but may be founded entirely on
the character of the suitors as miners. It is,
therefore, plain that this jurisdiction may have no
relation to mines or minerals at all, and can in
general have little influence at this day on the
welfare or interests of mining. The charters
rather contemplate the personal convenience of
tinners by providing a domestic forum for liti-
gation unconnected with titles or graver causes of
contention.
On the other hand, it does not very clearly ap-
pear that the statute 6 & 7 Wm. 4. c. 106. contem-
entry of a prohibition in Coke's Entries, 467, the charter of
33 Ed. 1. is misrecited, as if the word '•^operam" had been
used in the tenere phcita clause of it. The whole question
of jurisdiction is very elaborately discussed in treatises
among the Anstis MSS. in the Duchy Office, partially
quoted in Sir George Harrison's Report, a.d. 1829, pp. 133,
136, 149, 150, and among the Hale MSS., Lincoln's Inn,
vol. 83, f. 232, and Maynard MSS., ibid. vol. 63. The slat.
16 Car. 1. c. 15., though now in great part repealed or
superseded, may still be regarded as declaratory of the
practice at that time.
XVI INTRODUCTORY NOTICE.
plated any extension or amendment of jurisdic-
tion in reference to anything but causes relating
to mining and its subsidiary processes. But the
6th and 41st clauses are sufficient to preserve and
transfer to the Vice Warden any jurisdiction which
the Stannary Courts formerly possessed ; and it has
been considered by that Court that the Act might
fairly be construed to invest all miners with the
franchises theretofore enjoyed by tin miners alone.
Any doubt about this construction has been usually
obviated by styling the parties tinners as well as
miners; and as mines are now usually worked
by persons who qualify themselves to appropriate
all the metallic minerals they can find, it most
commonly happens that a miner is also tinner.
In the recent provision for extending the juris-
diction into Devonshire, it has been thought more
consonant with the objects of the Act to confine
it expressly to those causes which are connected
with mining, and arie directly conducive to the
advancement of that species of industrial enterprise.
The Equity jurisdiction is the department of the
Court which has hitherto enjoyed most favour, and
can alone exert any important infiuence on the
welfare of mining. It is this branch of jurisdiction
which' it has been the main object of the late Act
to extend and improve.
The records of the Court shew that its equity
INTRODUCTOEY NOTICE. XVU
jurisdiction has been in practice exercised, not in
respect of the person as a miner, but in respect of
the subject-matter alone — viz., a mine. Some few
precedents are said to be found of suits instituted
for other and diflFerent purposes ; but the objection
of want of jurisdiction was not there raised.* It is
certain that no suits uncoimected with mining can
receive any benefit from the extended efficacy con-
ferred on the process of the Court by the late Act ;
and it is very questionable whether even the consent
of the parties can authorize the Court to entertain
a jurisdiction in causes other than Stannary causes
on the equity side.
Neither on the equity nor the common law side
has the Court ever considered itself competent to
decide upon any question of title, at least of title
to the freehold or inheritance, or upon any question
touching or affecting such title, or to take cogni-
zance of any local action arising out of the
Stannaries ; f and where, in such cases, the
proceeding must necessarily prove fnutless for
* The case of Lecher v. Dale, brought by appeal before the
Lord Warden in 1838, was a common administration suit,
tried by consent. The Vice Warden tried it with reluctance,
and his decree was reversed.
f Appendix to Vice v. Thomas^ pp. 37 and 100 ; 4 Co.
Inst. 231.
XVUl INTRODUCTORY NOTICE.
want of inherent power to bind the parties or
enforce obedience, the objection of want of juris-
diction will probably be fatal without any plea or
demurrer to raise it j for no consent, testified by
an omission to raise it by proper pleading, can give
validity to any process unknown to the formularies
of the Court, or issued for execution beyond its
territorial limits, unless some Act of Parliament
shall have authorized it. But where the parties
and subjects of litigation are within those limits,
it would seem that the consent of the parties,
however testified, may enable the Vice Warden to
adjudicate upon claims touching the freehold or
title to land as between and against such parties
and those who claim under them.*
After having explained, so far as the records and
precedents of the Court and other authorities (not
always reconcileable with each other) will pertnit,
the nature and extent of the jurisdiction, it may be
useful to draw attention to the use and application
of its powers in relation to mining associations in
the counties of Cornwall and Devon, especially with
reference to the principal systems of management
now prevailing there, namely. Companies consti-
* See sect. 14 & 15 of 18 Vict. c. 32.
INTRODUCTORY NOTICE. XIX
tuted on the so-called '' Cost Book Principle/* and
those formed under the Joint Stock Companies
Acts.*
The last acts seem likely to undergo some modi-
fication by measures now pending in Parliament,
and it is therefore inexpedient to say much about
them. The present organization of Joint Stock
Companies gives to the Stannary Court but little
authority over them, nor can the customary pro-
cess of the Court be rendered in any important
degree available in favour of such companies, or of
their creditors. Any value which it may possess
is to be looked for chiefly in the case of mines not
registered or organized under those acts. Such
mines are now usually called Cost Book Mines.
This class of mines, or, more correctly, of mining
companies, derives its name from a book or books
long &miliar in the Account houses of Western
Mining Companies, in which are entered, among
other things, the costs, or working expenses, of the
mine. As applied to a class of companies the name
has become very current since the passing of the
Act of 7 & 8 Vict. c. 110. in 1844, from the ope-
* A third kind can, at present, hardly have any legal ex-
istence ; for the ordinary incidents of a mining partnership
would bring it within those acts, unless they can claim
exemption as Cost Book Mines. The acts to which these
observations refer are 7 & 8 Vict. c. 110. and the acts
passed for its amendment.
XX INTRODUCTORY NOTICE.
ration of which they are expressly excepted. The
exception is known to have been inserted at the
instance of those who regarded the compulsory
provisions of that act as likely to be onerous and
inconvenient to the mining interest within the
Stannaries ; but not being confined to the counties
of Cornwall or Devon by name^ the exemption was
soon claimed by companies established for mining
in other counties, who annoimced themselves as
cost book mine companies, and under the protec-
tion of that name (for they have generally adopted
little else beside the name) secured their freedom
from legislative regulation. The name has been
assumed even in the colonies, where the same
motive cannot have operated. In many cases of
mines worked out of the Stannaries, and in some
few cases within it, the name has been assumed
by companies which were strictly Joint Stock
Companies, with deeds of settlement and special
regulations framed on some ideal type of the
^*cost book system," or modelled on what was
supposed to be the approved practice of mining in
Cornwall.*
* A very useful and instructive summary of, and com-
ment upon, the cost book system, and the law of mines in
general, will be found in Mr. Collier's Treatise on the Law
of Mines, Chap. III., 2nd Ed. Mr. Childs, a solicitor well
acquainted with the practice of mining in the West, has
also published an able outline of the system.
INTRODUCTOEY NOTICE. XXI
It must not be supposed that cost book mining
is the basis of the Stannary jurisdiction. The
creation of the court must have long preceded any
organized system of working or management^ or
the use of any books whatever. Indeed the most
ancient usage of mining was for each shareholder
to work in common, and only to contribute
payment when he was unable or unwilling to con-
tribute personal labour ; and traces of this practice
are visible in the Stannary Convocation Acts even
as late as the 17th century, and perhaps later.
Whatever be the conditions of partnership
within the Stannaries, the Stannary Courts have
always claimed and exercised admitted jurisdiction
over them, and have regarded the adventurers as
subject to the local customs of management and pro*
cedure, where they have not themselves expressly
^iLcluded the former, or renounced the benefit of
the latter, by specific conventions binding upon
those who were assenting parties to them.
Although we have seen that any company of
miners in Cornwall or Devon are presumably
vrithin the cognizance of the Court, whatever be
the terms of partnership or modes of working
adopted by them, yet as nearly every open mine
in those counties is now worked under a manage-
ment which professes to conform to the cost book
principle, it will be worth while to give an outhne
of the principal features of the system or practice
XXU INTRODUCTORY NOTICE.
which has acquired that name. It will be seen
that some of the alleged incidents of the system
are such as attach to property of the nature of a
mining adventure wheresoever situate ; others are
referable only to local usage ; and it is not easy to
point out to what extent each incident is to be
regarded as essential. All practical miners wiU
probably admit the correctness of the outline, and
the expediency of a strict adherence to the terms
of it ; but they will also admit that the terms are
too often disregarded ; and even those who desire
to comply with them are not always agreed on the
true construction of them. —
The adventure is to be divided into equal parts,
called shares. The number of parts may be varied
by a resolution of the shareholders, but not so as
to affect the relative value of shares held by
existing adventurers; or by the devolution or
relinquishment of shares.
The principal agents usually named at meetings,
and removable, are the managing agents for under-
ground and surface works, such as captains, &c.,
and a purser or financial manager.
A book is kept called the '^ Cost Book*' in which
should be regularly entered, —
1. A list or lists of shareholders, with the
address and number of shares of each,
and dates of transfers ;
INTKODUCTORY NOTICE. XXUl
2. Names of officers appointed ;
3. Resolutions of meetings duly summoned ;
4. Accounts, and the audit thereof;
5. Declarations of calls and dividends ;
6. All duly notified changes in the ownership
of shares.
Any special matters relating to the management
or engagements of the mine ought also to appear
in the cost book.
The purser is the proper person to see that this
book is duly kept, but the duties of a purser are
sometimes otherwise distributed, or are under-
taken by a committee of managing shareholders
with their secretary. The above entries may be
contained in one or in several books ; and in large
mines they usually are so subdivided.
Frequent meetings of adventurers (usually every
two months) take place to examine and audit
accounts, declare dividends, or apportion costs
and direct calls for contribution thereto, to receive
reports, and to determine the course of proceedings.
At these meetings the majority in value bind the
rest as to the ordinary management of the mine.
The majority in such cases, or the authorized
managers of the mine, may pledge the credit of aU
the adventurers by contracts for goods, labour or
other necessaries for the working of the mine;
but not by contracts for the loan or advance of
XXIV INTRODUCTORY NOTICE.
money to the use of the mine, except with the
consent of all the shareholders.
Calls for contribution ought strictly and regu-
larly to be only for payment of costs actually paid
or incurred, and not for prospective works or
expences, or for money lent. If the agents or
managers borrow money and duly apply it, they
may be reimbursed, not as for money borrowed,
but for money laid out on the mine.
An adventurer may transfer his shares, and the
purser, or person having the charge and keeping
of the cost book, must enter the transfer on
production of a written notice of transfer from
the vendor, and of acceptance by the purchaser,
and on payment of costs due on the shares so
transferred.
An adventurer njay also determine his partner-
ship by relinquishing his shares, but without
prejudice to existing liabilities ; and he has a claim
for his proportionate share of the common pro-
perty of the company employed in the adventure.
A regular transfer is complete on the entry in
the cost book, so far as to give to the purchaser a
title to future dividends and to relieve the vendor
from liability to future calls, and to convey to the
purchaser all the interest of the vendor in the
adventure, plant, and common property. The
entry duly made on proper authority is a perfect
INTRODUCTORY NOTICE. XXV
customary transfer according to the general
practice in the Stannaries.
All creditors for goods^ labour, or necessaries
supplied, and personal services rendered in work-
ing a mine, have a tacit hypothec, or lien, on the
plant and personal property on the mine.
The company have a lien on the shares of coad-
venturers for contribution to costs duly apportioned
and allowed.
For the purpose of enforcing observance of this
system of working, the customary jurisdiction of
the Stannary Court will be exercised in the follow-
ing cases : namely —
To compel entry of a regular transfer in the
cost book in favour of the party entitled.
To compel production of books and lists of
adventurers pending a suit, or, in some cases,
when no suit is pending.
To enforce payment of contribution by a suit in
the name of the purser or principal agent against
shareholders for the sale of their shares.
To enforce the lien of creditors by petition
against the purser or principal agent; and to
prevent, by injunction, the sale or removal of
machinery and materials &om the mine, and, if
need be, to decree a sale and distribution pari
passu among creditors generally.
XXVI INTEODUCTOEY NOTICE.
To compel a general account and contribution
as between aU the shareholders ; and this without
praying for a dissolution of the partnership.
To compel specific performance of agreements
for sale of shares.
To declare setts, whether customary or written,
void for forfeiture by non- working ; and, by eject-
ment, to recover possession of mines after the for-
feiture or determination of the setts or licences
under which they are worked; and to stop the
working by injunction in case of waste or irre-
parable damage, or in other cases in which a
like injunction would issue out of the superior
Courts.
The above is not to be taken as a complete
statement of the remedial operation of the Court
in relation to mining. The equity jurisdiction
extends, so far as its powers and local limits
permit, to most of the usual causes which the
higher Courts of equity might entertain under
like circumstances. It is wanting however in the
important head of discovery upon oath. A partial
discovery may, in some instances, be obtained
on interlocutory proceedings, as in the superior
Courts; and statements may be required to be
verified on oath in order to entitle the party to
take some step, or to ask some favour from the
INTRODUCTORY NOTICE. XXVU
Court ; but no formal answer upon oath has ever
been required, as of course, fipom a defendant.
The rules relating to the necessary parties to a
suit apply as well to the Vice Warden^s Court as
to the High Court of Chancery ; and, generally,
the principles of Equity, and, to a certain extent,
the practice in Chancery, may be referred to as a
guide to the administration of justice in the Stan-
naries, except where ancient usage and prescription
have sanctioned a deviation from them, or the con-
stitution of the Court will not admit of their appli-
cation. Nor is there much reason to regret that
the practice of answering upon oath, and all the
consequential subtleties in both biU and answer
which it necessarily engenders, are unknown.
There is enough of equity to release the suitor
&om some inconvenient principles of pleading at
the common law, and to dispense with a resort
to the Court of Chancery in very numerous in-
stances.*
By recognising a general usage or principle of
* Until the extension of the jurisdiction into Devonshire,
it was impossible for any agent or creditor of a mine in that
country, who had the slightest interest in it as a shareholder,
to enforce payment of salary, wages, or other debts in any
Court of common law. As all the agents are commonly also
adventurers, the inconvenience of this state of things may be
easily imagined.
XXVm INTRODUCTORY NOTICE.
management^ which the Court presumes to be the
constitution of every company of adventurers in
the absence of express agreement at variance with
it, the establishment of any formal terms of partner-
ship, or the execution of any deed of settlement,
becomes superfluous. The mere association of a
party of adventurers for working a mine, without
more, makes them subject at once to those known
general rules of management and limits of liability
which are enforced by the ordinary jurisdiction of the
Court, and which have been found by experience to
work satisfactorily, and to involve no serious indi-
vidual responsibihty if the adventurers are men of
ordinary caution, and their agents men of common
honesty. It is the system on which by very far
the largest and most profitable mines in Cornwall
are at this time worked.
Mines in the two western counties are rarely
conducted by joint stock companies in any strict
or proper sense of that designation. Their joint
stock is nothing more than a license, sett, or lease
for a term of years from the lord of the land, of
little or no intrinsic value, and the machinery and
plant, whatever that may be, standing on or below
the surface. The mine, or rather the adventure
in it, is alone divided into shares, and there is no
nominal money capital, subscribed or imsubscribed,
which is to be made from time to time the subject
of calls for prospective expenses, and which con-
INTBODUCTO&T NOTICB. XXIX
stitutes the base of the company^s operations and
their title to credit.
In 80 far as any company shall adopt this last distin-
guishing attribute of a joint stock company^ just so
far will it depart from the normal type of a cost book
mine ; — that is, of a mine in which the shareholders
hold themselves liable only to contribute to the
actual costs of working so long as such works are
conducted with their consent^ or so long as they
do no^ testify their dissent by withdrawing firom
the adventure or disposing of their interest to third
parties. It is true that voluntary advances of money
by the general consent of shareholders in order to
establish efficient works, or to remove a temporary
pressure, may co-exist with a real and bond fide con-
formity to the general principle of a cost book part-
nership ; but it is apprehended that such advances
would no more constitute a true joint stock com-
pany than the like advances made for immediate
purposes by members of any private partnership.
It must, however, be recollected that the prin-
cipal Act (7 & 8 Vict. c. 110.) at this time in force
for regulating joint stock companies has apparently
80 defined such companies for the purposes of that
Act, as to include those which may have no capital
at all; as, for instance, a mere partnership con-
sisting of twenty-five members.*
* The Bill latelj brought into Parliament by the Vice
c
XXX INTEODUCTOEY NOTICE.
Whenever it may be thought advisable to carry
on operations on a very large scale ; — as to establish
workings over an extensive or unexplored district ;
or to attempt to make exhausted mines again pro-
ductive by a large and speculative outlay on the
means of increased power ; — then it may become
necessary to resort to other forms of association
than those which now prevail within the Stan-
naries.
If in order to obtain funds with greater^acility
it shall hereafter be thought expedient to adopt
the principle of a limited liability, such as the
legislature has recently been disposed to favour, it
will be necessary for mining companies to consider
well the nature of the species of the enterprise in
which they are engaged.
They will not overlook the fact, that the unex-
plored, underground, contents of a tract of land, of
which the value must be taken upon trust, and in
which the eye of any ordinary adventurer or creditor
will look in vain for the visible promise of future
profit, are not of the same nature as those super-
ficial subjects of commercial adventure, such as
docks, railways, patent rights, and the like, where
every subscriber is able, or fancies he is able, to
calculate the probable success, and is willing to
President of the Board of Trade includes in its compulsory
provisions a still wider range of associations.
INTRODUCTORY NOTICE. XXXI
cast his bread upon the waters with that confident
expectation of an early and profitable return, which
may be inspired either by his sagacity, or his igno-
rance. They will remember that those purchasers
who can fix limits to their own obligation to pay
must come into the market with ready money.
The merchants, who supply the essential materials
of mining industry, will give small credit unless
they can rely on the individual security of solvent
and amenable parties, or on the visible promise of
a prosperous concern. These considerations, how-
ever, are beyond the scope of the present introduc-
tory notice, which has for its object only a general
outline of the nature of the Stannary jurisdiction
and its application to mining in the two counties
over which it now extends.
It is proper to warn the reader that no observa-
tions or statements contained in this notice are to
be taken to have any more authority than, upon
examination, they may appear to deserve.
xxxu
CONTENTS.
Page
Table of General Orders in Equity 1
Table of General Eules at Common Law, viz. ;
In Suits by Plaint . .65
In Suits by Writ of Summons .114
BuleSy Orders, and Eegulations of the Office, &c. . 203
Table of Statutes .... 208
TABLE OF GENERAL OEDERS IN EQUITY.
I. GlCNERAL PbOCKDUBE.
Procedure bj Petition and Summons
Service of Petition and Summons
Form of Petition
Appearance
Demurrer or Plea to Jurisdiction
Answer
Replication .
Hearing
Evidence and Examinations .
■Production of Documents
Decree
Execution and Attachment .
Pftge
4
5
7
9
11
11
12
12
14
15
16
18
II. Incii>£ktal aot) Interlocutort Proceedings.
Service on Parties or their Solicitors . . 20
Amendment ...... 22
Abatement and Revivor . .23
Objection for want of Parties. Misjoinder. Nonjoinder 24
Objection to Pleadings . .26
Stay of Proceedings ..... 26
Motions and Affidavits .27
Injunctions ...... 28
C05TK^T8.
ni. pBocEKDnros nr the RBOiarrBAB's Office.
Page
Proceedings before the Registrar
29
Proceedings on Orders of Sale ; viz.
In Pursers' Suits • . . .
34
In Creditors* Suits . . . .
35
Beports by tlie R^istrar . . . .
38
Costs ......
39
lY. MiscELUkscBOiTS Okdkbs.
Computation of Time . . . .
42
Power to rectify Mistakes . . . .
43
Interpretation . . . . .
ib.
SCHEDUIS OF FOBMS.
(A.) Form of Petition . . . ,
45
(B.) Summonses to appear, &c
46
(C.) Petition in Pursers' Suit
47
(D.) Petition in Creditors* Suits
40
(£.) Demurrer to the Jurisdiction
51
(F.) Plea to the Jurisdiction
ib.
(G.) Form of Answer
52
(H.) Replication
63
(I.) Subpoena to testify to the Court, &c .
ib.
54
(L.) Registrar's Report . ' .
55
(M.) Summons to attend R^istrar .
ib.
(N.) Summons to produce Cost-book to the Regis-
trar, &c. ....
56
(0.) Writ of Fieri Facias within the Stannaries
57
(P.) Writ for execution out of the Stannaries
5S
(Q.) Writ of Attachment •
60
SCHEDULK OF COUST FsES.
, ,
61
GENERAL ORDERS OF THE COURT.
EQUITY SIDE.
The Vice Warden of the Stannaries, with the
consent and approval of the Eight Honourable Sir
George James Turner, one of the Lords Justices of
the Court of Appeal in Chancery, and by authority
of an act passed in the 18th year of the reign of
her present Majesty, entitled "An Act to amend
and extend the jurisdiction of the Stannary Court,"
and in pursuance and execution of all other powers
enabling him in that behalf, doth hereby obdeb
and DiBEOT that upon and after the 20th day of
April, instant, all existing written general orders and
rules in Equity of the Court of the said Vice Warden
shall cease and be no longer in force, except so far as
may be necessary to give effect to any step or proceed-
ing theretofore taken; and that upon and after the said
day, the following orders, rules and directions, with the
Schedules of Forms and Fees annexed thereto, shall
be the General Orders and Kules of the said Court
on the Equity side thereof, that is to say : —
B 2
GENERAL OBDEBS.
PBOCEBUBE BY PETITIOIT AlfD SUMMONS.
1. Suits on the equity side of the Court are to be
prosecuted by petition. The petition is to be in sub-
stance in the form (A.) contained in the Schedule
annexed to these orders.
2. The petition is to be entitled of the Stannaries
of the county or counties in which the mine or works
to which it relates are situate, and is to be addressed
to the Vice Warden. It may be either printed or
written, or partly printed and partly written, and is
to be subscribed in the manner required by orders,
No. 71, 72.
3. The petition is to be taken to the Secretary of the
Vice Warden, who will deliver to the petitioner a
summons requiring the defendant to appear and
answer, which summons is to be in the form (B.) con-
tained in the Schedule annexed to these orders.
4. The petition and summons are to be taken by
the petitioner, or his solicitor, to the Begistrar, who
will seal the summons and file the petition.
5. One summons may include all the defendants,
but duplicate summonses may be issued for convenience
of service.
6. The summons, together with a copy of the
petition, must be served within a calendar month after
its date, unless the Court shall otherwise order.
8EBTICE OP PETITION AND SUMMONS,
SEBYICE OF PETITION AND SUMMONS.
7. The copy of the petition and the summons are
to be personally served upon the defendant, and upon
each of several defendants, unless the Vice Warden
shall upon application to him for that purpose order
substituted service.
8. In cases where the Vice Warden or Court is
empowered by statute to order that service of process
on the defendant out of the jurisdiction of the Court
to compel appearance and answer, shall be good or suffi-
cient service, the application for such order is to be
made before service, and is to be supported by an
affidavit shewing to the satisfaction of the Vice
WM^en that the defendant sought to be served is not
personally resident or to be found within' the jurisdic-
tion ; and that the defendant is, or is verily believed to
be, resident or to be found at a place, to be named, in
England or Wales and out of the jurisdiction.
9. The application is to be made within one week
after filing the petition, and the motion is to be made
on production of a copy of the petition, and a certificate
by the Begistrar of the filing thereof.
10. Upon serving such process, a copy of the order
of the Vice Warden is at the same time, and in like
manner, to be also served on the defendant.
11. Affidavits filed for proving service under the
order are to state when, where, how, and by whom it
was effected.
12. In creditors' suits against pursers, the affidavit^
O OEITEBAL OBBEBS.
in support of the application for the order, is also to
show some satisfactory reason for making a person
out of the jurisdiction defendant in the suit.
13. In all cases of creditors' suits, the plaintiff is
forthwith, frfber filing his petition, to caxise to be fixed
up at the Account House or principal building on the
mine a notice to the following effect, signed by him
or his solicitor :
" To the adventurers and others interested in the
" mine called .
" Notice is hereby given that a petition was on the
" day of , filed in the Vice Warden's
" Court, by A. B. against C. D., the purser of [or
^^ prmcvpal agent of^ortm adventurer m] the above
" mine, for payment of the siun of , due from
** the adventurers, and for sale of the ores, machinery,
" materials and effects in defeult of payment."
14. In Pursers' suits for contribution, the plaintiff,
who applies to the Vice Warden for an order to sub-
stitute service on the mine for personal service, must
show by affidavit that the defendant cannot be per-
sonally served within the jurisdiction ; and where the
application may be made after such constructive service,
he must also show by affidavit that the summons and
copy of petition have been fixed up in a conspicuous
part of the Account House or principal building on
the mine, and that reasonable diligence has been used
to notify to the defendant the filing of the petition
and is^iuing of the summons.
15. After such constructive service has been ordered
and made, all further services in the same cause, made
8EBTICE OF PSTITIOK AlH) BXTHKOVS. 7
in the same manner in which the Bummons and petition
were served, are to be deemed sufficient without
further order, unless the defendant shall in the
mean time have voluntarily appeared in person or by
solicitor.
rOBH OF PETITION.
16. The petition is to state the material facts and
circumstances on which the plaintiff relies concisely
and phunly, without stating any matters which are
merely evidence of such facts and circumstances, and
without reciting the forms or customs of procedure of
the Court; and the petition is to pray for the par-
ticular relief required, and also for general relief.
17. In Pursers' suits, the petition is not to contain
any formal recital of the custom of pursers to sue for
contribution to the costs of the mine, or of the custom
to 8^ the shares of adventurers in satisfaction of such
costs.
18. In Pursers' suits, if the adventurers profess to
work the mine on the cost-book system or principle,
this is to be alleged in the petition.
19. The petition in such suits is to show, if the
fSact be so, that the accounts of the mine have been
duly audited and allowed, and that the costs sought
to be recovered by the plaintiff are part of the costs
which have been so audited and allowed ; and credit
is to be given in the petition for all payments (if any)
made by the defendant on account ; and the petition
8 GENEBAL OBDEBS.
is to pray for a decree for pajment ; for sale of the
defendant's shares and interest in the mine in default
of payment ; and for general relief. The petition in
such suits may be in the form (C.) contained in the
Schedule annexed to these orders.
20. In Creditors' suits the petition is not to con-
tain any formal recital of the custom to sue pursers or
agents for the debts of the adventurers, or of the
custom to sell ores, machinery, materials, and effects
on a mine in satisfaction of such debts.
21. The plaintiff in such petition is to give credit
to the defendant for all payments on account which
have been made to him by or on behalf of the adven-
turers. He is to allege the existence of ores, ma-
chinery, materials, or other effects of the adventurers
on the mine, and to pray for a decree for payment,
and for a sale of them in default of payment.
22. The plaintiff in such petition is also to pray
for an injunction, if need be, to restrain the sale or
removal of the ores, machinery, materials, and effects
by the adventurers, and for general relief. The peti-
tion in Creditors' suits may be in the form (D.) con-
tained in the Schedule annexed.
23. In pursers' and creditors' petitions the sums
alleged to be due from the defendant or adventurers
in respect of contribution or of debts, respectively, are
to be truly stated according to the facts of the case ;
and, generally, all dates, figures, and sums are to be
truly stated in all petitions and other pleadings, so
far as they are known or can be ascertained.
APPEABANCE.
APPEAEANCE.
24. The defendant is to cause his appearance to be
entered within four days aft-er service, if the service
be within the jurisdiction of the Court, or within
eight days after service, if the service be else-
where in England or Wales, unless the Vice Warden
shall otherwise order.
25. It is to be entered by the Eegistrar upon
instructions in writing from the defendant or his
solicitor, and the date of such entry is to be recorded.
26. If a defendant, being duly served, shall not have
caused his appearance to be entered within the time
limited for that purpose, the plaintiflf may apply to
the Eegistrar to enter an appearance, who is to ei)ter
it accordingly if satisfied by affidavit of the due
service of the summons and copy of the petition.
27. If the defendant so in default shall appear to be
an infant, or person of unsound mind without a com-
mittee, the Eegistrar is not to enter any appearance
for him at the instance of the plaintiff, but, upon the
application of the plaintiff, the Vice Warden may, if
he thinks fit, upon proof of due service of process and
of notice of application, as required in like cases in
suits in the High Court of Chancery, assign some
solicitor within the jurisdiction, or some other fit
person to be guardian ad litem by whom such defen-
dant may appear and answer ; and may give such
directions for the indemnity of the guardian as
b3
10 GEKEILIX 0BDEB8.
the justice and circumstaQces of the case may
require.
28. The plaintiff, who causes such appearance to
be entered for the defendant, is to be allowed the
costs thereof and incidental thereto, whatever be tl\e
event of the suit.
29. Notwithstanding an appearance so entered by
the plaintiif, the defendant may afterwards enter an
appearance for himself, but such appearance is not to
affect any proceeding duly taken, or any right acquired
by the plaintiff under or after the appearance entered
by him, or to prejudice the plaintiff's right to the
costs of the first appearance.
30. Every application in a creditor's suit, raider
section 5 of the statute 18 Vict. c. 32., by a person
to be let in to defend the suit as an adventurer, is
to be supported by satisfactory affidavit or affidavits
that the person applying is such adventurer ; and, on
such person being admitted to defend, the Begistrar
is forthwith to enter his appearance, and the person
BO admitted to defend is to file his answer within the
time limited by the practice of the Court, or within
such further or shorter time as may be specially
limited by order of the Vice "Warden or Eegistrar.
31. A guardian ad litem may be assigned for an
infant, or person of unsound mind without a com-
mittee, by the Vice Warden, upon a proper application
and certificate of no adverse interest; and such
guardian is to be a person resident within the juris-
diction of the Court.
D£MUBB£B OB PLEA TO JUBISDICTTON. 11
SEMITBBEB OB PLEA TO JUBISDICTION.
32. Demurrers or pleas to the jurisdiction are to be
filed by the defendant within ten days after appearance
entered by or for him : and the demurrer or plea (as
the ease may be) may be in the forms (E.) and (F.)
contained in the Schedule annexed.
ANSWEB.
33. The answer is not to be put in upon oath. It
may be in the form (G.) contained in the Schedide
annexed.
34. The answer is to deny, either generally or spe-
cially, every material allegation in the petition which
the defendant intends to controvert at the hearing.
All other statements contained in the petition not so
denied will be taken as confessed.
35. New matters relied upon by the defendant by
way of answer to the petition, not being a mere denial
of any allegation in the petition, are to bie stated in the
answer concisely and plainly; an.d may be stated
without further particulars than are necessary to give
reasonable notice to the plaintiff of the substance of
the defence intended to be relied upon at the hearing.
Matters of set-off or counter-claim, in reduction or
extinction of a pecuniary demand, must be stated in
the answer.
12 OZNEBAL OBDEBS.
36. The answer to the petition is to be filed within
fifteen days after appearance, whether entered by or
for the defendant, unless further time be allowed to
the defendant by consent of the plaintifi", or by order
of the Vice Warden or Registrar.
37. Notwithstanding the filing of any demurrer or
plea to the jurisdiction, the defendant, if he intends to
answer, must also answer within the time limited for
that purpose.
BEPLICATION.
38. Within eight days after the filing of any plea to
the jurisdiction, and of any answer, by the defendant,
the plaintiff* is to file a replication in the form (H.)
contained in the Schedule.
39. Upon the filing of the replication, the cause will
be deemed to be completely at issue.
40. If the plaintiff" files no replication within the
time limited in that behalf, the plea or answer will
be taken as confessed and sufficient as against him,
and the defendant may then move to dismiss the peti-
tion for want of prosecution on production of the
Registrar's certificate of default.
HEABINO.
41. When the defendant shall have filed only a
demurrer to the jurisdiction, either party is to be at
HEABIKO. 13
liberty to bring on the demurrer for argument at
the sittings on giving four clear days' notice to the
other party.
42. When the defendant shall have filed a demurrer
or a plea to the jurisdiction, and aho an answer ; — or
a plea to the jurisdiction only ; — or an answer only ; —
he plaintiff is to bring on such demurrer and answer,
plea and answer, plea alone, or answer alone, for hear-
ing at the then next sittings after the cause shall be
at issue.
43. In the last mentioned cases, eight days' notice
of hearing is to be given before the first day appointed
by the Court for the hearing of causes in equity,
unless the Vice "Warden shall otherwise order ; and
four days countermand of such notice is to be suffi-
cient.
44. At the time of giving such notice of hearing,
the party who gives it is also to notify to the Secre-
tary of the Vice Warden his intention to bring on the
cause for hearing or argument at the sittings specified
in his notice to the opposite party.
45. If, after a cause is at issue, the plaintiff does
not proceed to bring it on at the next practicable sit-
tings, the defendant is to be at liberty to move to dis-
miss the petition with costs for want of prosecution ;
or he may, if he thinks fit, instead of moving to dis-
miss the petition, apply to the Vice Warden for
liberty to bring on the cause on some future day of
the same, or any subsequent sittings, to be appointed
by the Yice Warden.
46. Upon the hearing of a cause at issue, all ques-
14 OENEBiiL OBDEBS.
tioDB of fact and of law arising upon the petition and
pleadings are to be taken as open to the parties.
47. If the defendant, having been duly served with
notice of hearing, not countermanded, shall not appear
at such hearing, the plaintiff is to have such decree as,
upon the pleadings and evidence, if any, adduced by
him, he shall, in the judgment of the Court, appear to
be entitled to.
EVinENOB AND EXiLMmATIONS.
48. Upon the hearing of petitions before the Vice
Warden, the evidence of the witnesses is to be given
vivd vocCf unless the parties shall otherwise have
agreed, and it is to be subject to the same rules of
practice as on trials on the common law side, so far as
they are applicable; but examinations taken out of
Court by the direction of the Vice "Warden, or affidavits
sworn by his direction before the Eegistrar or Commis-
sioners duly appointed, may be received in evidence.
49. Witnesses, who shall be examined vivd voce out
of Court, may be so examined either by or before the
Eegistrar, or by or before a Commissioner or Commis-
sioners named or appointed, pro hdc vice, by the
Vice Warden, and subpoenas shall be issued to enforce
attendance as upon hearings before the Vice Warden.
Schedule (I.) (K.)
50. Such examinations out of Court are to be con-
ducted, generally, in like manner as examinations by
or before the Examiners of the High Court of Chan-
ETEDENCB AJSTD BXAMIKATIOITS. 15
eery, having regard to the provisions contained in
sects. 31, 32 and 33 of stat. 15 & 16 Vict. c. 86., so far
as they are capahle of being applied to the Court of
the Vice "Warden ; and the original depositions taken
upon such examination are to be authenticated by the
signature of the Eegistrar or Commissioners, and filed
in the Begistrar's Office and be open for inspection of
the parties to the suit, who shall be entitled to copies
of the whole or any part thereof on payment of the
fees authorized by the Court.
51. ExaminatioDs of witnesses de bene esse may be
taken by order of the Vice Warden, on motion, and
are to be conducted in the same manner and by or
before the same persons as other oral examinations
out of Court.
PBODUCTIOir OF nOCUMEKTS.
62. The Vice "Warden, upon the application of the
plaintiff in auy suit on the equity side, will make an
order for the production by any defendant upon oath
of such of the documents in his possession or power
relating to the matters in question in the suit as the
Vice Warden shall think right, and he will in like
manner, on the application of any defendant, make a
like order for production of such documents by the
plaintiff on oath ; and the Court may deal with such
documents, when produced, in such manner a» shall
appear just.
16 GENEBAL ORDERS.
53. The practice in making orders for the produc-
tion of such documents will be governed by the prin-
ciples and practice of the High Court of Chancery on
like applications, so fisir as the same may be consi-
dered to be applicable ; and the forms of order and of
affidavit prescribed for use in that Court may be used,
mutatis mutandisy in the Court of the Vice "Warden of
the Stannaries.
DECREE.
51. If the defendant neglects to file a demurrer,
plea, or answer within the times limited by the practice
of the Court, the plaintiff may, after the time for
answering has expired, move for a decree as upon con-
fession of the petition, on production of the Eegistrar's
certificate of such default ; and the Vice Warden may
thereupon, if he thinks fit, make such decree or order
as the facts stated in the petition may warrant, or may
direct that the cause be brought on for hearing on the
petition at the next sittings, with leave for the defend-
ant to appear at the hearing and to argue the merits
as stated in the petition.
55. In pursers' suits for contribution, there is to be
no decree pro confesso for payment unless the petition
alleges that the accounts of the mine have been duly
audited and allowed by the adventurers, and a satisfac-
tory affidavit be filed verifying that allegation and also
the amount and nonpayment of the defendant's debt ;
DECBEB. 17
and tbe motion for a decree 'pro cowfetso for payment
must be founded on such affidavit and on the Eegis-
trar's certificate of default of appearance and answer.
56. K no such audit and allowance be alleged in the
petition, or no such affidavit filed, the decree pro con-
fesso is to be for such inquiries only as the Vice
Warden shall think fit.
57. The decree for payment in a purser's suit may
include an order for sale of the defendant's shares
in default of payment ; and such order for sale may be
made absolute on motion of course on a satisfactory
affidavit of due service of the decree, and of default
of payment in pursuance thereof.
58. In creditors' suits the motion for a decree pro
confesso for payment is to be founded on an affidavit
verifying the amount and nonpayment of the debt, and
on the Eegistrar's usual certificate of default.
59. The decree for payment in a creditor's suit
may include an order for sale in default of payment,
and such order for sale may be made absolute on
motion of course on a satisfactory affidavit of due
service of the decree, and of default of payment in
pursuance thereof.
60. Decrees and orders of the Court are to be dated
and to be drawn up without any further recital of the
previous proceedings in the suit than is sufficient to
• identify the suit and explain the decree or order ; and,
if made by consent of parties, they are to be expressed
to be so made.
61. Decrees and orders requiring a party to pay
money or to do any other act, are to fix the time, or
18 OENEBAL OBDEBS.
time after service, at or within which the act is to
be done.
EXECFTIOir AITD ATTACHMBlTr.
62. Where the decree or order of the Court is against
a party to the suit for payment of money, costs of suit,
charges, or expenses, the party prosecuting the decree or
order is to be at liberty to enforce payment according to
the exigency of the decree or order by suing out such
writ or writs oi fieri facias^ to be executed within the
jurisdiction, as may be necessary, without special leave
or order of the Court for that purpose.
63. Any writ so issued is to be made returnable
immediately, and have the indorsements required in
the case of like writs issued out of the High Court
of Chancery, and specified in the form (O.) in the
schedule annexed.
64. If no goods and chattels, or no sufficient
goods and chattels, of the party against whom the
writ oi fieri fadas issues, can be found within the
jurisdiction of the Court to satisfy the monies directed
to be levied imder it, the party prosecuting the decree
01* order may, upon affidavit showing personal service
of the decree or order ; the amount, if any, levied
under the vmt oi fieri facicta ; and the amount still
remaining due and unsatisfied, move the Court for
leave to issue an attachment; — or he may, vrithout
special leave of the Court for that purpose, upon a
return of nulla hona, or of an insufficient levy by the
bailiff;— or, by leave of the Court without such
EIECTJTIOir AlTD ATTACHMENT. 19
return, upon satisfactory proof, by affidavit or other-
wise, that payment cannot be conveniently or effec-
tually enforced by the ordinary process of the Court
within the jurisdiction thereof, — sue out a writ or
writs of execution, to be executed by the high bailiff
of any County Court out of the jurisdiction in cases
where the decree or order of the Court may lawfully
be enforced by that process. The writ may be in the
form (P.) in the Schedule.
65. Where the decree or order of the Court is for
some act to be done, other than the payment of money,
costs, charges, or expenses, the party prosecuting the
decree or order may, upon affidavit of personal service
of the decree or order, and of the neglect or refusal of
the party served to obey the same, according to the
exigency thereof, move the Court for leave to issue an
attachment against the disobedient party.
66. "Writs of attachment are to be made return-
able immediately, and to be in the form, mutatis
mutandis, and as far as may be, of like writs issued
out of the High Court of Chancery, and are to have
the like indorsements thereon. The form of writ CQ.)
is contained in the Schedule.
67. Upon suing out any attachment or writ of
execution, a prcscipe is to be filed at the Begistrar's
Office by the party suing it out.
68. Bailiffs are compellable to return writs by
orders issued on application either to the Vice "Warden,
or to the Eegistrar when the Court is not sitting, as
in like cases on the common law side of the Court.
69. No process of execution or attachment is to
20 OENEBAL OBDEBS.
issue against the purser or other defendant in a Credi-
tor's suit, except as a contributory under section 5 of
the statute 18 Vict. c. 32., or by special order of the
Court.
70. Every person, not being a party in the cause,
in whose favour an order shall have been lawfully
made, is to be entitled to enforce obedience to it by
the same process as if he were a party; and every
such person against whom obedience to an order may
be enforced is to be liable to the same process as if he
were a party.
SEBVICE ON PABTIES OB THEIB SOLICITOBS.
71. Every solicitor of a party suing or defending by
a solicitor is to subscribe, indorse, or write upon every
petition, demurrer, plea, answer, writ, or other plead-
ing or proceeding, and upon all instructions to the
Begistrar for appearance or other purpose sued out or
filed in the cause, his name and place of business ;
and, if such place of business shall be distant more
than three miles from the* Eegistrar's office, he is also
to leave with the Begistrar some other address within
the said distance, where writs, notices, orders, sum-
monses, rules and other proceedings and written com-
munications may be left for him ; or he is to give such
other directions as he shall think fit for service of such
last mentioned documents by the general post. If no
such address for service or directions shall have been
left with or given to the Begistrar, the service is to
BERTICE ON PABTIES OB THEIB B0LICIT0B8. 21
be by some other mode substituted by order of the
Vice Warden.
72. Every party suing or defending in person is, in
like manner, to subscribe, indorse, or write his name
and residence upon every petition, demurrer, plea,
answer, writ, pleading, proceeding and instruction
aforesaid ; and, if such residence he distant more than
three miles from the said office, he is also to leave an
address for service within that distance, or directions
for service, as above, by the general post, as in the case
of solicitors. In the absence of such address or direc-
tions for service, service is to be by some other mode
substituted by order of the Vice Warden.
73. In all cases of service through the general post
the service wiU be presumed to be, or have been, duly
effected on the day on which the document would
arrive at its address and be delivered in due course of
delivery.
74. The above orders touching service on the party
or his solicitor are not to be taken to apply to cases
where personal service is necessary, or to extend
to cases where other service is speciaUy prescribed
by stat. 18 Vict. c. 32., or is expressly provided by the
present orders.
76. Writs, notices, orders, summonses, rules, and
other proceedings and written communications, not
requiring personal service, are to be served before
«even o'clock, p.m., and service after that hour is to
be deemed to be service on the day next following,
excluding Sundays.
76. A party is not to be at liberty to change his
22 GENSBJLL OBDEBS.
solicitor in any suit without an ordOT of the Court,
which may be obtained, on summons, from the Regis-*
trar.
iLHEKDSIEITT.
77. Applications made for amending petitions, pro-
ceedings, or pleadings, before hearing, are to be made
to the Eegistrar, and not to the Vice Warden in the
first instance, except when the Court is sitting ; and
where the application is not ex paHCy or of course,
particulars of the proposed amendment, are to be
shortly specified in the summons to attend before the
Eegistrar.
78. Where the amendment made is one which will,
or may, alter or affect the subsequent pleadings of the
opposite party, the Registrar is to allow to such party
such further time for pleading or amending as to the
Registrar shall seem reasonable under the circum-
stances ; but not so as to extend the time for pleading
or demurring for want of jurisdiction.
79. In pursers' suits for contribution, and in
creditors' suits against pursers, the Vice Warden at
any time, or (before hearing) the Registrar when
the Court is not sitting, may, if he thinks fit, upon
application for that purpose, authorize an amendment
of the petition by substituting another person in
place of the purser or principal agent named in the
petition as filed ; but if the application is made after
appearance entered by the defendant, such amend-
AKEKBMElSrT. 23
ment is to be made, if at all, only on hearing both
parties, and upon such tenns as to the Vice Warden
or Eegistrar shall seem just.
80. In pursers' suits the petition may be amended
at any time before hearing by adding a demand for
further contribution, become due and payable from
the defendant since the filing thereof^ on such terms
and conditions as the Vice Warden or Begistrar (as
the case may be) shall think fit.
81. And generally, facts and circumstances, which
have occurred after the institution of a suit, may be
introduced in the petition by way of amendment, on
such terms and conditions as shall be thought just ;
and a supplemental petition shall not be necessary in
such cases.
ABATEMENT AND EEVIVOB.
82. The proceedings substituted by the Act 15 &
16 Vict. c. 86. s. 52. for bills of revivor or supple-
mental bills, upon suits becoming abated or defective
by reason of the matters therein mentioned, may be
adopted in suits in this Court, mutatis mutandis, so far
as is consistent with the limited jurisdiction thereof
as amended and enlarged by the statute 18 Yict.
chap. 32. ; and parties served with the order obtained
under such proceedings may apply within eight days
after such service to discharge the order.
24 OEKEBAL OBDEBS.
OBJECTION FOB WjLKT OF PABTIE8. — MISJOIKDEB —
KOTTJOIITDEB.
83. It will not be competent for any party in a suit
to take any objection for want of parties to such suit,
in any case to which the rules set forth in section 44
of the statute 15 & 16 Yict. chap. 86. extend ; and the
said rules, and the general orders of the High Court of
Chancery, now in force, touching the same rules,
mutatis mutandis, are to be taken as part of the
practice of the Court of the Yice Warden, so far as
they are applicable to suits brought therein, and can
be enforced by the process thereof; save only that the
time for applying to add to any decree under Eule 8, is
to be prescribed by the Vice Warden in each case, and
to be specified in the notice of decree therein required.
84. No suit is to be dismissed by reason only of
the misjoinder of persons as plaintiffs therein, but the
Court may grant relief modify its decree according to
circumstances, and direct such amendments as may be
necessary, and generally may exercise all the powers
which the High Court of Chancery is enabled to
exercise, in like cases of misjoinder under and by
virtue of the last mentioned statute, so far as is con-
sistent with the limited jurisdiction of the Court of
the Vice Warden ; as amended and enlarged by the
statute 18 Yict. chap. 32.
85. The power conferred by a.ection 51 of the
statute 15 & 16 Vict. c. 86., to adjudicate on questions
OBJECTION FOE WANT OF PABTIES. 26
arising between parties, notwithstanding that they
may be some only of the parties interested in the
property respecting which the question may have
arisen, without making the other parties interested
therein parties to the suit, may, subject to the proviso
in the said section, be executed by the Court of the
Vice Warden, so far as is consistent with the limited
jurisdiction of the said Court, so amended and
enlarged as aforesaid.
86. If in any suit or other proceeding before the
Court, it shall appear to the Court that any deceased
person who was interested in the matters in question
has no legal personal representative, the Court may
either proceed in the absence of any person represent-
ing the estate of such deceased person, or appoint
some person to represent such estate for all the
purposes of the suit or other proceeding, on such
notice to such person or persons, if any, as the Court
shall think fit, either specially or generally by public
advertisements ; and the order so made by the said
Court, and any orders consequent thereon, are to bind
the estate of such deceased person in the same manner
in every respect as if there had been a duly con-
stituted legal personal representative of such deceased
person and such legal personal representative had
been a party to the suit or proceeding, and had duly
appeared and submitted his rights and interests to the
protection of the Court.
26 GEITEBAL OBDEBS.
OBJECTION TO FLEADIIfGS.
87. Objections made before hearing by either party
for defect of form, or on the ground of uncertainty,
obscurity, prolixity, or multifariousness, are to be
made in the first instance before the Eegistrar, and
not before the Vice Warden, except when the Court
is sitting ; and applications to the Begistrar on such
grounds, are to be made before demurrer, plea, or an-
swer filed where the defendant objects to the petition,
and before replication filed, where the plaintiff objects
to the answer.
STAT or FBOCEEDnras.
88. Interlocutory applications to the Vice "Warden
or Eegistrar for amendment, or on objection to plead-
ings, or proceedings, or for particulars of demand, or
set off, or counter-claim, or for other purposes, are to
operate as a stay of proceedings if, and for such time
only as, the Vice Warden or Eegistrar shall respec-
tively order.
89. The time during which proceedings in a suit
are stayed by order or otherwise, is to be excluded in
the computation of the time limited by these orders
for filing any pleadings.
KOTIOirS JlSTD affidatits. 27
MOTIOKS AKD APFIDATITS.
90. All applications in a cause to the Vice Warden
when sitting, or to the Vice Warden out of Court,
whether by a party to the suit or not, are to be by mo-
tion, and interlocutory petitions shall be unnecessary.
91. When the Court is not sitting, motions for
orders nm, and motions not requiring the personal
attendance of parties or their solicitors, made in any
cause, may be made by handing the motion paper and
accompanying affidavits or other documents to the
Secretfuy, who will forthwith transmit them to the
Vice Warden, unless he shall observe any clear irre-
gularity in the motion or accompanying papers, which
he may think fit to bring to the notice of the party
moving before transmission.
92. The application for special orders in any cause,
not being orders ea parte, is to be made either by mo-
tion for an order to be made absolute unless cause be
shewn within four days after service thereof, or within
tiie four first days of the next sittings (as the case may
be) ; — or by motion for an order absolute in the first
instance after previous notice of motion to the oppo-
site party; and such previous notice is to be served
not less than four days before* the day named for
moving, and is to express the object of the appli-
cation, and specify the affidavits, or other documents
intended to be used by the applicant ; and the party
served will be entitled forthwith to inspect the papers
c 2
2S GEKEBiX OBPEBS.
referred to in the notice, and to obtain copies thereof
from the Eegistrar when filed ; and the party moying
will in like manner be entitled to inspection and
copies of any affidavit or other document to be used
by the party on opposing the motion ; and such in-
spection, if refiised, may be ordered by the Eegistrar.
93. Notice of motion must be personal, when the
motion is for process of contempt, unless personal
service be dispensed with by special order of the Vice
Warden.
94. All affidavits and examinations used on motions
or special applications are to be filed.
95. Affidavits on motions of course, or ex parte , are
to be filed on or before moving.
96. All affidavits used in any cause are to be headed
" Court of the Vice Warden of the Stannaries," and
are to be drawn and expressed in the first person. If
not so drawn and expressed, the affidavit may, never-
theless, be read and used, but the Eegistrar may in
his discretion disallow the costs of it ; and when a
deponent speaks of facts only from the information of
others, and not from his own knowledge, he must so
state in his affidavit.
jnf JUNCTIONS.
97. Injunctions to restrain the sale or removal of
ores, machinery, materials and effects from a mine, may
issue ex parte on motion at any time after petition
filed.
pbocsephtos beeobs the begistbab. 29
98. The affidavit necessary to support such motion
is to allege good ground for apprehending that the
effects on the mine are about to be sold or removed by
the adventurers or others, and must verify all the ma-
terial statements in the petition, and must further state
that no other injunction has, to the best of deponent's
information and belief, been already issued in another
creditor's suit in the matter of the same mine, or
that such other injunction is likely to be dissolved
or become inoperative for reasons set forth in the
affidavit.
99. A list of injunctions issued in creditors' suits,
with the names of the parties and the mine, the date
of issuing, and sum sought to be recovered in each
suit, is to be exhibited at the Eegistrar's Office for
inspection of all applicants; and injunctions, when
dissolved, or issued in suits abated, compromised, or
otherwise disposed of, are to be erased from the list,
as soon as such dissolution, abatement, compromise,
4&C., shall become known to the Eegistrar.
PBOCEEDHfas beeobe the begistbab.
100. Proceedings by and between the parties before
the Eegistrar, are to be by summons and order instead
of warrants. The form of summons (M.) in the
Schedule annexed may be adopted.
101. Minutes or memoranda are to be preserved in
the office of all orders for amendments, enlargements
of time granted to parties, and other matters which
30 GEKEBAIi OBDEBS.
the Eegistrar has authority to hear and determine,
order, or deal with in a summary way.
102. All certificates and reports of the Begistrar
on matters referred to him are to be filed and preserred
in the office.
103. Where any decree or order referring any mat-
ter to the Eegistrar is not brought into the Begistrar's
office within ten days after the same decree or order
is pronounced, any party to the cause, or any other
party interested in the matter of the reference, is to
be at liberty to bring in the same, or to apply to the
Vice Warden by motion, as he may be advised, for the
pinrpose of expediting the prosecution of the said
decree or order.
104. Upon the brmging in of every decree or order
the solicitor or party prosecuting the same is to apply ,
to the Begistrar to appoint a time for the purpose of
taking into consideration the matter of the said decree
or order, and is to serve a copy of such appointment
upon the other solicitors of the respective parties, or
upon the parties in cases where they have no solicitors.
105. At the time so appointed, and during the
reference before him, the Begistrar is to regulate, as
far as may be, the manner of its execution ; decide
what parties are entitled to attend future proceedings;
direct the necessary advertisements, and point out
whether the matters requiring evidence shall be
proved by affidavit, or by examination of parties and
witnesses, or otherwise ; and fix the times at or within
which parties are to take any proceedings before
him.
PBOOEEDIIfOS BEFOBE THE BEOISTBAB. 31
106. Where some or one, but not all the parties,
attend the Begistrar at an appointed time, the Eegis-
trar is to be at liberty, on proof of due notice of the
appointment, to proceed ex partCy if he thinks it
expedient so to do.
107. Where the Begistrar has proceeded ex parte,
such proceeding shall not be reviewed in the Begis-
trar's Office, unless the Begistrar, upon a special
application made to him for that purpose by the party
who was absent, shall be satisfied that he was not
guilty of wilful delay or gross negligence ; and then
only upon prepayment of all costs (if any) occasioned
by his non-attendance.
108. Where a proceeding fails by reason of the
non-attendance of any party or parties, and the Begis-
trar does not think it expedient to proceed ex parte,
then the Begistrar is to be at liberty to certify what
amount of costs (if any) should be paid to the party
or parties attending by the absent party or parties.
And upon motion, and, if it shall think fit, ex parte,
the Vice Warden may make an order for the payment
of such costs accordingly.
109. Where the party actually prosecuting a decree
or order does not proceed before the Begistrar with due
diligence, the Begistrar is to be at liberty, upon the
application of any other party interested, either as a
party to the suit, or as one who has come in and
established his claim before the Begistrar under the
decree or order, to commit to him the prosecution of
the said decree or order, and from thenceforth neither
32 6EKEBAL 0BDEB9.
the party making default Dor his solicitor is to be at
liberty to attend the Eegistrar as the prosecutor of
the said decree or order.
110. Every siunmons for attendance before the
Eegistrar will be considered as peremptory. And in
case the Eegistrar shall not be attended by the solicitor,
or a competent person on behalf of the solicitor, of any
party, the Eegistrar may in such case disallow the
usual fee for the solicitor's attendance.
111. Where, by virtue of any decree or order,
books, papers, or writings are to be produced be-
fore the Eegistrar for the purposes of such decree
or order, it will be in the discretion of the Eegis-
trar to determine what books, papers, or writings
are to be produced, and when, and for how long they
are to be left in his office; or, in case he shall not
deem it necessary that such books, papers, or writings
should be left or deposited in his office, then he may
give directions for the inspection thereof by the
parties requiring the same at such time and in such
manner as he shall deem expedient.
112. All parties accounting before the Eegistrar
are to bring in their accounts in such form as he
shall direct, and any of the other parties, who shall
not be satisfied with the accounts so brought in, are
to be at liberty to examine the accounting party vivd
voce, or otherwise, as the Eegistrar may direct.
113. The Eegistrar may at his discretion examine
any witness vivd voce, and may, in such case cause a
subpoena to be issued for the attendance of the wit-
PBOOEEDDfOS SEEOBE THE BEaiSTBAB. 33
ness, and the evidence upon such vivd voce examina-
tion is to be taken down by the Begistrar or by his
assistant or clerk in his presence, and to be preserved
in the office in order that the same may be used by
the Court if necessary.
114. The Eegistrar is to be at liberty to examine
any creditor, or other person coming in to claim before
him, either upon interrogatories, or vivd voce, or in both
modes, or to receive affidavits from him, as the nature
of the case may appear to the Eegistrar to require ;
and all affidavits, made and used in some previous
proceeding in the cause, may be used before the
^Registrar.
115. In case any party, witness, creditor, or
claimant, whom the Eegistrar is authorized to examine
vivd voce, shall refuse to answer, or shall not satis-
factorily answer, any question which the Eegistrar
may lawfully put to him, the Eegistrar is to certify
such refusal or such unsatisfactory answer, and the
question or questions asked, to the Court ; and there-
upon the Vice "Warden, upon motion to be served
as he may think reasonable and just, may, if he shaU
think fit, direct an attachment to be issued against
such party, witness, creditor or claimant, as for a con-
tempt of Court.
116. Where property is to be sold under the direc-
tion of the Eegistrar, he is to be at liberty to order
the same to be sold at such time and place and by
such person as he shall think fit, and for the benefit of
the parties interested.
c3
84 OEKEBAL OBDEfiS.
117. Wheneyer in any proceeding before the Eegis-
trar the same solicitor is employed for two or more
parties, the Begistrar may, at his discretion require
that any of the said parties shall be represented before
him by a distinct solicitor, and may refuse to proceed
until such party is so represented.
118. Where any cause or matter shall become
abated, or shall be compromised, the plaintiff or his
solicitor is to certify the &ct to the Begistrar as soon
as it shall come to his knowledge.
PBOOSSDiyOS UPOK OBDEBS OE SALE.
(1). In Purser's SuiU.
119. In purser's suits, after the order of sale shall
have become absolute, the Begistrar is to proceed to
put up the shares and interest of the defendant for
sale, and after the sale shall have been effected,
and before completion, the Begistrar is to certify
the same to the Court, and the defendant is to be at
liberty to object to such certificate, within five days
only, after the signing of it, in the manner pro-
vided by these orders under the head of " Beports by
the Begistrar ;*' and if no such objection is made, or
it be overruled or otherwise disposed of, the sale is to
stand confirmed without further order, and the same
is to be completed under the direction of the Begis-
trar, who is to pay over the proceeds according to the
decree, and, if required by the plaintiff, is to certify
PBOC^EBIKGS UPOlSr OBDEBS OF SALE. 85
the balance, if any, due from the defendant ; and upon
Buch certificate an order, or orders, of course for pay-
ment thereof either immediately, or within such time
as he shall think fit, may be made by the Yice
Warden ; and the plaintiff will be at liberty to sue
out such process or take such further proceedings in
satisfaction of the balance as he may be advised.
(2). In Oreditars' Suits.
120. In creditors' suits, after the order of sale shall
have become absolute, the Begistrar is to take posses-
sion of the saleable effects of the adventurers upon or
about the mine when required by the party by whom
the order is prosecuted, and to proceed to ascertain
the claims of all creditors who are entitled to payment
out of the produce of the sale, and to sell the property
conformably to the order or decree.
121. The claims of such creditors may be proved by
examination of the claimant or his witnesses ; by affi-
davit; or by the cost book, cost sheets, or other
accounts of the mine, where the same shall appear to
the Eegistrar to be trustworthy.
122. Before the produce of the sale is distributed
by the Eegistrar among the creditors who have proved
their debts, the [Registrar is to report to the Coiirt the
produce of the sale, and the expenses thereof, and the
names and claims of all such creditors; and such
report is to be subject to exception in the manner
provided by these orders under the head of " Eeports
by the Eegistrar.'*
36 GEKEBAL 0RDEE8.
123. The Eegistrar, if he shall think fit, may make
interim dividends, notwithstanding the pendency of
any objection to the report, in all cases in which such
dividend can safely be paid without affecting the
interest of the objecting party.
124. After the report has been, or become, confirmed
and is filed, the Eegistrar is to distribute the proceeds
of the sale among the creditors, and (if required by the
plaintiff or any creditor who may have been admitted
to proof under the decree or order, but not otherwise)
is to certify such distribution, and the amount of the
debts, costs and expenses, if any, remaining unsatisfied.
125. The costs of proof by creditors are not to be
allowed unless the proceeds of sale shall be sufficient
to satisfy all other claims proved under the order of
sale ; and then only to the extent of the surplus.
126. A creditor who has commenced an action or suit
in any Court against the purser, or against any adven-
turer, for the recovery of the debt which he desires to
})rove under the order for sale, or of any part thereof,
is to be admitted to prove the same on such terms
only, as to the abandonment of the suit or action
and the costs thereof, as the justice of the case may
require.
127. All suits by creditors commenced in the Court
of the Vice Warden, after an order of sale shall have
been made, for debts which may be proved under such
order, may be stayed, upon application to the Vice
Warden, until further order of the Court.
128. Where a petitioner or other creditor is also
PEOCEEDINGS UPON OBDEBS OP BALE. 37
a co-adventurer in the mine, and liable with his
co-adventurers to contribute to payment of the debt,
he is not to be entitled to payment or to a dividend
under the order of sale until all other creditors, not
being co-adventurers, have been paid in full.
129. K, after payment by the Registrar of all
debts, costs, and expenses in full out of the proceeds
of the sale, any surplus shall remain in the Regis-
trar's hands, and there be no other claim or charge
upon it, application may be made to the Vice Warden
by motion to cause the same to be paid out of Court
to the defendant or other person duly authorized by
the adventurers to receive it on their behalf.
130. Any plaintiff or creditor, who may apply to the
Vice Warden under the statute 18 Vict. c. 32. sec. 5.
for liberty to proceed to enforce payment of the debts
remaining unsatisfied after sale and distribution by
the Registrar, is to state in his affidavit, to the best of
his information and belief, not only the number of
adventurers or persons liable to contribute to pay-
ment, but also how many of them are resident \^dthin
the jurisdiction, and how many elsewhere in England
or Wales out of the jurisdiction, and is to produce
the Registrar's certificate of distribution.
131. The report made by the Registrar, after he- has
settled the list of contributories, is to be open to excep-
tion in the manner provided by these orders under the
head of " Reports by the Registrar :" and when the
report shall have been or become confirmed and been
filed, as therein provided, application may be made to
88 GEITEBAL OBDEAS.
the Vice "Warden by motion of course to order pay-
ment in conformity with the said report.
BEPOBTB BY THE BEOISTBAB.
132. The present practice of excepting to any
report or certificate by the Eegistrar is to be discon-
tinued, and hereafter exceptions are to be taken in
the following manner only : —
133. Any party to a suit, or person interested, who
may be dissatisfied with any decision or direction of
the Eegistrar in a matter pending before him for
report or certificate, may appeal therefrom to the Vice
"Warden by way of motion.
134. The motion must be for an order nisi to vary
or discharge the report or certificate, and must state
the grounds of objection on which the appellant
intends to rely.
136. Such motion is to be made within eight days
after the signing of the report or certificate by the
Begistrar ; and the order nisi, if granted, must be
brought on for hearing before the Vice Warden at the
earliest practicable sittings of the Court after the expi-
ration of the said eight days, or may be disposed of
before such sittings by the Vice "Warden on a written
statement prepared and signed by the Eegistrar, and
agreed upon by the appellant and parties to the suit,
and submitted to the Vice Warden with their consent.
136. If there be no appeal from the report or certi-
BEPOBTS BY THE BEOISTBAB. 89
ficate, or if no order nisi be granted, or if the appel-
lant shall not duly bring on his appeal for hearing
within the time and in the manner herein provided, or
the objections of the appellant be overruled, the
report or certificate is to stand confirmed without any
further order of the Court, and the same shall then
be filed and become binding on all parties to the
proceedings.
137. The Vice Warden may, upon such motion,
vary or discharge the report or certificate either wholly
or in part, or may refer it back to the Eegistrar with
such directions as he shall think fit ; and after the
report or certificate so varied or altered, or referred
back, has been finally settled, and has been signed by
the Vice "Warden in testimony of his approval, it is
to stand confirmed without any further order of the
Court, and is to be then filed and become binding on
all parties to the proceedings.
138. The Eegistrar is to be at liberty to make sepa-
rate or partial reports or certificates, if it shall seem
to him expedient or necessary, either for the purpose
of obtaining the opinion, direction or further order of
the Court, or for any other pmrpose ; and the costs of
such separate or partial reports or certificates shall be
in the discretion of the Court. The form of Ee-
port (L.) in the schedule annexed may be adopted.
COSTS.
139. When the same solicitor is employed for two
40 GENERAL 0BDEB8.
or more defendants, and separate answers shall have
been filed, or other proceedings had, by or for two or
more defendants separately, the Eegistrar is to consi-
der in the taxation of such solicitor's bill of costs
either between party and party, or between solicitor
and client, whether such separate answers or other
proceedings were necessary or proper ; and if he is of
opinion that any part of the costs occasioned thereby
has been unnecessarily or improperly incurred, the
same is to be disallowed.
140. Upon the overruling of any plea or demurrer,
the defendant is to pay to the plaintiff the taxed costs
occasioned thereby, unless the Court shall make order
to the contrary.
141. If the defendant shall, at the hearing of a
cause, object that the suit is defective for want of
parties, and it shall be adjourned, or the petition be
dismissed, on that ground only, the defendant will not
be allowed the costs of the day, as of course, unless
the objection shall have been taken in his answer, or
be apparent on the pleadings.
142. The Registrar, on all applications to him under
stat. 18 Yict. c. 32., or under these orders, is to be
at liberty to direct in the orders made by him thereon
whether the costs of the application shall be costs in
the cause, or whether such costs, or any part thereof,
shall be paid by any of the parties personally ; and in
the latter case the Eegistrar may, in such orders, either
fix the sum to be paid for such costs, or tax the same,
at his discretion ; and the party, to whom such costs
COSTS. 41
are directed to be paid, may apply for an order of the
Court, if necessary, for payment thereof.
143. In taxing costs, the Eegistrar is not to allow
to any party costs which do not appear to be necessary
or proper, and reasonably incurred for the attainment
of justice, or for defending his rights, or which appear
to have been occasioned by excessive length of docu-
ment, carelessness, gross error, or a desire to throw
costs wantonly on the opposite party.
144. Upon interlocutory applications where the
Court awards costs to either party, the Court may by
the order direct payment of a sum in gross, in lieu of
taxed costs, and direct by and to whom such simi is to
be paid.
145. In cases where a petition is dismissed with
costs or a motion is refused with costs, or any costs
are by any general or special order, ordered or decreed
to be paid, the Registrar may tax such costs without
any order referring the same for taxation, unless the
Court shall otherwise direct.
146. Where one solicitor is employed by a purser to
sue several adventurers in the same mine or adventure,
for contribution, and separate petitions shall have been
filed against them, the Eegistrar shall consider, in the
taxation of costs, whether separate petitions were ne-
cessary or proper under the circumstances, and if he is
of opinion that additional costs have been thereby im-
properly or unnecessarily incurred, he may disallow or
reduce them at his discretion.
42 OEITEBAL OBBEBS.
COMPITTATIOK OP TIME*
147. When the time for doing an act is Kmited by
a certain number of days from or after any date or
event, the computation shall exclude the day of the
date or event, and include the last day of such limited
time ; unless clear da/ys shall be expressed.
148. When the last day so limited expires on
Sunday, or any other day when the office is not open,
that day shall also be excluded from the computation.
149. The power of the Vice Warden or Begistrar
to enlarge or abridge the time for doing any act, or
taking any proceeding, in a cause, is unaffected by
these orders.
POWEB TO BECTIPT MISTAKES.
150. Where the directions contained in these orders
with respect to procedure or practice or other matters
shall, through accident, mistake or oversight of parties,
fail to be followed, the Court reserves the power to
rectify such mistake or oversight upon payment of
costs or other terms as may be justified by the merits
of the case.
IKTEBPBBTATION.
161. In these orders the following words are to be
COMPITTATIOIT or TIME. 43
interpreted as follows, except where the context
requires a different construction.
The word " Beffistrar *' includes any Eegistrar or
person performing the duties of Eegistrar for the
Stannaries of Devon.
Party or person includes a body politic or corpo-
rate or company competent to sue by its officer, or in
its registered name, and also a next friend and guardian
ad litem,
Pwrser includes such principal agents or officers of
a mine as are, by custom, competent to sue adven-
turers for contribution, or liable to be made
defendants in suits by creditors of adventurers, in the
Vice Warden's Court.
*^ Affidavit ^^ includes affirmations.
Words importing the male sex mdyjAe females.
Words importing the singular number include the
pltiral number ; and e converso.
4&
SCHEDULE OF FORMS.
EQUITY SIDE.
Thb Forms contained in the following Schedule maj be
used in cases to which they are applicable with such
alterations as the nature of the suit, the character of the
parties, or circumstances of the case, may render necessary ;
but any variance therefrom, not being in matter of sub-
stance, will not affect their validity or regularity.
(A.)
rOBM OF PETITION.
In the Court of the Vice Warden of the Stannaries.
Stannaries of Cornwall [or Devon].
Between A, B. - - plaintiff*,
and
C. D., E. F., &c. - defendants.
To the Vice Warden of the Stannaries.
The petition of A. B. of sheweth to his Honor :
1 . That, [^state the material facts of the case in separate
paragraphs^ numbered^ concluding tuith the prayer of the
petition, th-us} :
46 SCHEDULE or rOBMS. .
Hie plaintiff pbats :
That an account may be taken by and under the decree
of this Court of all dealings, &c., [as the case may be]-
That the plaintiff may have such further or other relief, &c.
[Signed by the plaintiff or his solicitor,
with his residence, address or place
of business, as required by orders,
No. 71, 72].
(B.)
SUMMONS TO APPEAB AND ANSWER.
Stannaries of Cornwall [or Devon],
The Lord Warden of the Stannaries to C. D. of
greeting :
You are hereby summoned and required that within
days after the service of this summons on you,
you [and every of you] do cause your appearance to be
entered to a petition filed against you in the Court of the
Vice Warden of the Stannaries by A. B. of (a
copy of which petition is herewith served on you) ; and
that within fifteen days after such appearance you do also
file your answer [or answers] to the petition as you may be
advised, otherwise the matters stated in the petition will be
taken to be confessed by you, and you will thereupon be
liable to such decree or order made in your absence as the
Court may think just.
And TAKE NOTICE that your appearance to the petition
will be entered on the written application of yourself or of
your solicitor, at the Registrar's Office at , and that
if you fail so to apply within the time hereinbefore specified,
the plaintiff will be at liberty to enter such appearance for
you, in your name and at your expence [or for you^ or any
of youj in the name and at the expence of the party or parties
respectively, who shaU so fail] ; and you are further informed
BOHSDiiXE or rOBMB. 47
tliat if you [or any of you] have any objection to make
to the jurisdiction of the said Court in this suit, you must
file your demurrer or plea to the jurisdiction, as you may
be adyised, within ten days after appearance so entered by
or for you.
Dated this day of in the year
By the Court, (l. s.)
(C.)
PETITION IN A PUB8SA*8 SUIT.
In the Court [as above, C-^*)]*
Stannaries of Cornwall [or Devon],
Between A. B. - plaintiff,
and
C. D. - defendant.
To the Vice Warden of the Stannaries.
The petition of A. B. of sheweth to his Honor :
1. That a mine called situate at in the
Stannaries of has been worked and carried on for
years last past and upwards, and still is so worked
and carried on by a company of adventurers.
2. That the said company is constituted on the cost book
principle, and the said mine or adventure was, during the
time when the costs and expences hereinafter mentioned
were incurred, divided and carried on in shares or
parts.
3. That the plaintiff is the purser [or principal agent] of
the mine, and as such sues in behalf of the said company.
4. That the defendant was from the day of
until the costs and expences hereinafter mentioned were
incurred, and still is, possessed of shares or parts
of and in the said mine or adventure.
48 SCHEDULE OE EOBMS.
5, That during all that time the accounts of the said
company in respect of the mine or adventure have been
from time to time duly audited and allowed at meetings
of the adventurers according to the custom of such companies
within the Stannaries ; and that when the same were lastly
so audited and allowed, namely, on or about the
day of the sum of £ appeared and was
found to be due from the defendant as his proportion of
and contribution to the costs and expences incurred by
the said company in working, managing and carrying on the
mine or adventure, and providing the necessary materials
and labour for that purpose.
6. That the defendant has had notice of the amount so
due from him, and the same has been demanded of him by
the plaintiff on behalf of the said company of adventurers,
but he has not paid the same or any part thereof, [or, he
has paid the sum of only, on account or in part payment
thereof^, and wholly refuses to pay the same [or the resittue
thereof].
The plaintiff pbats :
That the defendant may be decreed to pay to the plaintiff,
for and on behalf of the said company, the sum of
or such sum as shall, on enquiry, be found to
be justly due from the defendant.
That in default of payment of the sum so decreed
to be paid, the shares and interest of the defend-
ant in the said mine or adventure, or a competent
number or part thereof, may be sold under the direc-
tion of the Court in satisfaction of the debt of the
defendant and of the costs of this suit.
That the plaintiff, as such purser, [or principal ag'e?i/],
may have such further or other relief as the nature of
the case may require.
Signature, &c. [as in (A.)]
SCHEDULE or FOBMS. 49
(D.)
PETITION Uf A CBEDITOB's SUIT.
In the Court of [as above, (A.)].
Stannaries of Cornwall [or Devon],
Between A. B. - plaintiff,
and
CD.- - defendant.
To the Vice Warden of the Stannaries.
The petition of A. B., of sheweth to his Honor .
1. That a mine called situate at in the
Stannaries of has been worked and carried on for
years last past and upwards, and still is so worked
and carried on by a company of adventurers.
2. That the defendant is the purser [or principal agenf]
of the said company, and is sued by the plaintiff as such
purser, [or principal agenf] according to custom.
3. That there is now due to the plaintiff from the said
company the sum of £ for goods and materials sup-
plied by him to and for the use of the said mine, and the
adventurers therein, and at their request ; [or, as the case
may be, for work and labour of the plaintiff, as a labouring
ndner, done and bestowed by him in and upon the mine, and
the vHfrking thereof, at the request of the said adventurers; or,
for the services of the plaintiff performed in and about the
fnine^andthe works thereupon, as captain, or agent, or erigineer,
§fC,, at the request of the said adventurers, ^c] ; which sum,
although the same has been, before the filing of this
petition, demanded by the plaintiff of the adventurers, and
of the defendant as such purser, still remains unpaid.
4. That the said goods and materials were, according
to the usage and custom of mining within the Stannaries,
supplied by the plaintiff as well on the credit of the said
adventurers in the mine, as of the ores, halvans, machinery.
50 SOHEDTJLE OP POBMS.
materials and other effects for the time being, and from time
to time, belonging to the adventurers, and being upon or
about the said mine or the works thereon.
5. That there are upon and about the said mine divers
ores, halvans, machinery, materials and other effects of the
adventurers, on which the plaintiff claims to have a lien by
reason of the premises, and to enforce the same by process
of this Court according to custom.
6. That if the defendant, or adventurers, shall not be re-
strained from removing, or otherwise disposing of, the several
articles and effects aforesaid by the order and injunction of
this Court, the plaintiff will be in danger of losing his debt
and his security for payment thereof.
The plaintiff PB ATS ;
That the defendant, as purser and on behalf of the said
company of adventurers, may be decreed to pay to
the plaintiff the said sum of £
That on default of payment of the isum so decreed to be
paid, the ores, halvans, machinery, materials and other
effects belonging to the adventurers, and now being
upon or about the said mine or the works thereon, or
a competent part thereof, may be sold under the direc-
tion of the Court in satisfaction of the said debt and
the costs of this suit, and of all other debts, if any, of
the adventurers owing to creditors, who shall come in
and prove their debts, and shall be legally entitled to
payment out of the proceeds of such sale.
That in the meantime the defendant and the adventurers,
their servants, agents and workmen, may be restrained
by the order and injunction of his Honor in that behalf
from selling, removing or otherwise disposing of the
articles and effects aforesaid, or any part thereof, from
the mine.
That the plaintiff may have such further or other relief
as the nature of the case may require.
Signature, [as above in (A.) ].
SCHEDULE or FOBMB. 51
(E.)
DEMURRER TO THE JURISDICTION.
In the Court of the Vice Warden of the Stannaries.
Between A. B. - - plaintiff,
and
CD. •» - defendant.
The demurrer of C. D. defendant [or one of the defendants] ,
to the petition of the above-named plaintiff.
The defendant, protesting that the matters in the petition
contained are not true ^ therein set forth, demurs thereto,
and shews for cause of demurrer. That [then state the ground
of the supposed want of Jurisdiction^ e. g., " That the petition
does ttot appear to relate to any mine worked for metallic
minerals within the Stannaries, or to the working thereof or to
any metals or minerals therein^ or to any adventure or shares,
or interest in such mine or minerals,* ^c] ; and therefore the
defendant prays that the petition may be dismissed with
costs.
Signature [as above, (A.)].
(F.)
PLEA TO THE JURISDICTION.
In the Court [as above"].
Between A. B. - - plaintiff,
and
CD. - - defendant.
The plea of C D. defendant [or one of the defendants] to
the petition of the above-named plaintiff.
D 2
52 soHiDULZ or roBMS.
Hie defendant, protesting that the matters in the petition
contained are not true as therein set forth, for plea thereto
sajs that [then state the facts relied upon to shew the want
of jurisdictUm], and, therefore the defendant prays that the
petition maj be dismissed with costs.
Signature [as above^ (A.)]*
[If the demurrer or plea applies only to part of the
petition, it is to be confined to that part.]
(G-)
In the Court [as dbove^*
Between A. B. - - plaintiff,
and
CD. - - defendant.
The answer of C. D., the defendant [or one of the
defendants'], to the petition of the above-named plaintiff.
In answer to the petition the defendant sajs as follows :
That [here the defendant is to deny such statements as he
intends to controvert^ and to make such further statements of
fact as he may rely upon as a defence to the whole or part of the
petition, e. g., That certain parties referred to ought to he
made parties to the suit; or, that the plaintiff's claim is
reduced or extinguished by a set'Off, or counter-claim ; or the
Statute of Limitations; or a settled account; or other matter
of defence not amounting to a mere denial of any statement m
the petition; or he may put in a disclaimer. See Orders,
Nos. 34, 35].
Signi^ture [as above, (A.)].
80&XS1TI.1S OF F0BH8. 58
(H.)
BBPUGATIOV.
In the Court las above^.
Between A. B. - - plaintiff,
and
C. D,, E. F., &c., - - defendants.
The plaintiff hereby joins issue with the defendant, C. D.
[here name any defendants who may have pleaded or answered^;
and will hear the cause as upon confession of the petition
against E. F. [here name any defendant against whom the
Court has made no decree pro confesso but has directed a
hearing on the peiUion^ with liberty for the defendant to argue
the merits as stated in it See Order, 54.]
Signature \as above, (A.)].
(I.)
SUBPOSNA TO TB8TIFT IK COUBT, OB BEFOBE THE BEGISTBAB*
The Lord Warden of the Stannaries,
To greeting :
You are hereby commanded that, you [and every ofyou'],
laying all other matters aside, and notwithstanding any
excuse, personally be and appear before the Vice Warden of
the Stannaries [or before Esquire^ the Registrar of the
Court of the said Vice Warden"], at in on the
day of at o*clock».in the forenoon, to
testify the trudi according to your knowledge in a certain
suit now depending in the said Court, wherein A. B. [and
others, or another, are or] is plaintiff [or plaintiffs'], and
C. D. [and others, or another, are or] is defendant [or
5i SCHEDULE 07 TOBHS.
defendant^'] on the part of the [m case of subpoena
duces tecum, add, « and that you then and there bring with you
and produce,*" ^c] And hereof fail not at your peril.
Dated this day of in the year of
By the Court, (jl. s.)
[Not more than four names are to be included in one
subpcena].
(K.)
SUBPCENA TO TESTIFY BEPOBB A COMMISSIONER.
The Lord Warden [as above"].
To greeting :
We command you that, laying all other matters aside, and
notwithstanding any excuse, you personally be and appear
before E. F., a Commissioner [or Commissioners'] appointed
by the Vice Warden of the Stannaries for the examination
of witnesses, at such times and place as the bearer hereof
shall by notice in writing appoint, to testify the truth
according to your knowledge in a certain cause depending
in the Court of the said Vice Warden, wherein A. B. [and
others, or another, are or] is plaintiff [or plaintiffs], and
C. D. [and others, or another, are or] is defendant [or
defendants], on the part of the [in case of subpcena
duces tecum, add, ^ and that you then and there bring with
you and produce,** ^c] And hereof fail not at your peril.
Dated [as above].
By the Court, (i^ s.)
. SCHEDULE OF EOBMS. 55
(L.)
SEGISTBAB^S BEPOBT.
In the Court of the Vice Warden of the Stannaries.
Stannaries of Cornwall [or Devon"],
Between A. B. - - plaintiff,
and
CD. - - defendant.
In re - - Mine.
In pursuance of a decree [or order] of the Court in this
cause, bearing date the day of and of the
directions contained therein, I hereby certify to the Court
as follows :
That afler the order for sale in this cause had become
absolute, I proceeded to put up the shares and interest of
the defendant in the said mine or adventure for sale by
auction on the of &c.
That the highest offer, &c.
That I have taxed the costs, &c. [and so on, in
paragraphs],
[The above form is to be varied according to the facts,
and b not to be taken to restrict the Registrar in the
case of reports of a special kind, or in cases where fuller
recitals may be necessary to explain the report].
(M.)
SUMMONS TO ATTEND THE BEGISTSAK.
In the Court [as above].
Stannaries of Cornwall [or Devon],
A.
i re - - Mine.
A. B., 1
v. > In :
CD. 3
Let the plaintiff's [or defendants] solicitor attend at my
office at [Truro], to-morrow [or on next], at
56 SCHEDULE OF FOBMS.
o'clock in the forenoon, to shew cause why, &c. [state the
subject of the summons or application^ and add a stay of aU
proceedings in the cause^ when thoug?Ufit,'] Dated, &c.
Registrar's signature.
(N.)
SUMMONS TO APFEAB AND FSODUGB COST-BOOK, &C., BSFOSB
THE BEGISTSAB UNDEB SECT. 5 OF 18 YICT. C. 32.
The Lord Warden of the Stannaries to E. F. [the purser
or other person having the cost-book or aOier documents re-
quired for production before the Registrar in kis custody or
control], greeting:
You are hereby summoned and required personally to
appear before the Registrar of the Court of the Vice
Warden of the Stannaries, at his office at in the
county of on the day of instant, at
o*clock, in the forenoon, there to be examined
touching certain matters pending before the Registrar in a
cause in the said Court, in which A. B. is plaintiff, and
C. D., and others, are defendants, and you are then and
there to produce before the Registrar the cost-book, or
books, lists of shareholders [enumerate the documents
required], and all other books, papers, and documents
of the adventurers relating to the mine called or the
management thereof; and take notice that you will be liable
to process of attachment if you fail to obey this summons.
Dated, &c.
By the Court, (jl. s.)
[This summons is only to be served within the jurisdiction
of the Court. It may be confined to the production of
documents, or to the examination of the party summoned,
as the Registrar may think fit. A subpoena for service out
of the jurisdiction for the like purpose may be framed from
the above form].
SOHXStTIiE OF FOBHS. 57
(O.)
WRIT OP nSBI FACIAS FOB EXECUTION WITHIN THE
JURISDICTION.
The Lord Warden of the Stannaries, to my bailiffs of the
Stannaries, E.F. and G.H., and to each of them, greeting :
I command you, and each of you, in the name of Her
Majesty the Queen, that of the goods and chattels of C. D.
within the Stannaries of Cornwall or Devon you cause to
be made the sum of which said sum of money was
lately in the Court of the Vice Warden of the Stannaries,
in a cause wherein A.B. is plaintiff and CD. is defendant,
by a decree [or order] of the said Court bearing date
decreed [or ordered] to be paid by the said C. D., to the said
A. B.,* together with certain costs in the said decree [or
order] mentioned ; and that of the said goods and chattels
you farther cause to be made the sum of being the sum
at which the said costs have been taxed, and allowed by the
Registrar of the said Court,* and that you have that money
at the office of the said Registrar, at [Truro], immediately
after the execution hereof, to be paid to the said A. B., in
pursuance of the said decree [or order] ; and in what
maimer you have executed this writ make appear to the
said Court immediately after the execution thereof, and
have there then this writ. Dated this day of
By the Court, (l. s.)
[If the amount of costs is specified in the decree or order,
then the part between asterisks may be omitted, and the
amount be added to the first mentioned sum].
INDORSEMENT ON THE ABOVE WEIT.
The within named C. D. is a [calling of the party] and
resides at in the county of
[S^^d by A, B, or hie solicitor^ tvith his address,
^c, as required by Orders 71, 72].
Levy together with for this writ, besides
officer*s/ee8 and incidental expences.
d3
58 SCHEBtn^ OF FOBMS.
(P-)
WEIT FOE EXECUTION OUT OP THE JUSISDICTION.
The Lord Warden of the Stannaries, to the High Bailiff of
the County Court of greeting.
Whereas in a certain cause on the Equity side of the Court
of the Vice Warden of the Stannaries, whereof the said Court
has cognizance, wherein A.B. is plaintiff, and C. D. is defend-
ant, it was by a decree [or order'] of the said Court, bearing
date ordered, [here state the order^ or so much of it as
relates to the payment of money or costs sought to be enforced] ;
Hnd whereas the said money and costs have not been paid
by the said to the said and payment thereof
cannot be [cofiveniently or effectually] enforced, according to
the exigency of the said decree [or order], by the ordinary
process of the last mentioned Court within the jurisdiction
thereof; These are therefore to eequiee and command
you, in the name of Her Majesty the Queen, and in pursu-
ance of the statute in that case made and provided, that
you forthwith cause to be made and levied by distress
and sale of the goods and chattels of the said
wheresoever they may be found within the district of the
said County Court, (except the wearing apparel and bed-
ding of the said or his family, and the tools and
implements of his trade, if any, to the value of £5), the
said sum of [or the said sums of ] [tJie sums
together must not exceed £50], and also the costs of this
execution ; and that you also seize and take any money or
bank notes, (whether of the Bank of England, or of any
other bank), and any cheques, bills of exchange, promissory
notes, bonds, specialties, or securities for money, of the
said which may there be foimd, or such part, or so
much thereof, as may be sufficient for the satisfying of this
execution, and the costs of making and executing the same;
and that in the execution of this writ you proceed in all
SCHEDULE or F0BM8. 59
respects as if this had been a warrant of execution issued
by the County Court of which you are the high bailiff, and
that you pay what you shall have levied under it to the clerk
of the said County Court, and make your return of what you
shall have done under this writ immediately after the execu-
tion thereof. Dated this day of
By the Court, (l. s.)
[To be indorsed as follows] :
Amount decreed to be paid
Poundage for issuing the writ .
Bailiff^s fee for execution and mileage
Paying money into Court
Total amount to be levied
d.
WABSAST TO THE CLERK OF THE COUNTY COUBT TO BE
ANNEXED TO THE ABOVE WBIT.
Court of the Vice Warden of the Stannaries.
To Clerk of the County Court of
A. B., f At the request of ^the name and address of
V. r the party prosecuting the ivrit], and in pursuance o^
C. D., J the statute in that case made and provided, that is
to say, the statute 18 Vict. ch. 32. sections 9 and 10, 1 hereby
authorize and require you to cause the writ of execution
hereunto annexed to be executed in due course of law by
the high bailiff of the above County Court, and to certify
to me what shall have been done under the same, and to
remit the amount levied under it, less the costs of makmg
such levy according to the practice of the County Court,
to the said [name and address"]^ who prosecutes this
writ. Dated and sealed with the seal of the said Court
this day of
William Michell, Registrar of the Court of
the said Vice Warden, (l. s.)
[The above forms of execution will require modification
to adapt them to the case of a decree for general contribu-
tion under sect. 5 of 18 Vict. c. 32.]
60 SCBEStlLS OF FOBMB.
(Q)
WEIT OP ATTACHMENT.
The Lord Warden of the Stannaries to my bailiffs of the
Stannaries, £. F., and G. H., and to each of them,
and to all other my bailiffs within the Stannaries,
greeting:
I command you, and each of you, in the name of her
Majesty the Queen, to attach C. D., so as to have him before
the Vice Warden of the Stannaries immediately after the
receipt of this writ \oronthe . day of instant']^
wheresoever the Vice Warden shall then be sitting, there
to answer as well touching a contempt which he, as it b
alleged, has committed against the Court of the said Vice
Warden, as also such other matters as shall be then and
there laid to his charge; and, further, to perform and
abide such order as the said Court shall make in this behalf;
and hereof fail not ; and bring this writ with you.
Dated this day of in the year
By the Court, (l. s.)
Indortement on the above torii, if for nof^xtyment of money
or costs :
" For not paying the sum of £ [or of £ for
costs']^ ordered to be paid by the within named C. D., to
A. B., by an order, dated day of made in a
cause wherein the said A. B. is plaintifi', and the said C. D.
[and others'\ is [or are"] defendant [or defendants'].^^
If the attachment is for breach of any other order^ except
nonpayment of money, say:
** For breach of an order, dated &c., made in a cause
wherein A. B. is plaintiff, and the within named C. D. is de-
fendant^ in not" [here insert the mandatory part of the order].
Signature and address of solicitor or party to
be added, as in a writ of fieri facias.
TABLE OF FEES OF COURT AND OFHCERS.
EQUITY SIDE.
The Fees of Court, and of the Officers of the Court, here-
tofore allowed in suits on the Equity side of the Court
are henceforth to cease, and in lieu thereof the following
fees are to be taken and allowed, subject, however, to
abatement or remission at the discretion of the Registrar
on special grounds, or by order of the Vice Warden.
£ «. d.
Issuing summons and filing petition . . 10
Same where the suit is by a purser for contribu-
tion, or by a creditor for a debt, not exceeding
£20, respectively . . . .050
Each duplicate sununons, if required . .010
Entering an appearance for one defendant .030
Same for each defendant in a purser's suit .010
Filing plea, demurrer, answer, or replication .050
Filing an affidavit or other document . .010
Subpoena to testify, whether duces tecum or other-
wise, not containing more than four persons .020
Same to testify before the Registrar -or a Comnus-
sioner . . . . . .010
Commission to examine witnesses . . .050
Decree or decretal order . . . . 10
Same where the suit is by a purser for contribu-
tion, or by a creditor for a debt, not exceeding
£20 . • . . . .050
£
s.
d.
2
6
5
2
6
2
6
62 TABLE OP FEES — EQUITY.
Summons to attend the Vice Warden out of Court
Interlocutory order, and order of course .
Same in a purser's or creditor*s suit for a sum
not exceeding £20 ....
Duplicate decree or order, if required
Registrar's report or certificate on reference to
him, 6d, per folio of 72 words.
Registrar's certificate to the Superior Courts for
execution or enforcing decree or order .026
Other certificates by the Registrar . .010
Oflice copies, 4d, per folio of 72 words.
Registrar's summons . . . .020
Registrar's order . . . . .030
Advertisements, each . . . .050
For allowance of a debt by the Registrar on pay-
ment of a dividend of £3 or more, a fee of 6d. in
the pound, not to exceed in the whole . .050
Search . . . . . .010
General search. Is. per hour, to be compounded at
the discretion of the Registrar . . .000
Swearing an affidavit before the Registrar .010
In the case of a claimant, in a creditor's suit,
of a sum under £5, this last charge is not to
be made for swearing the affidavit in proof
of it.
Taxation of costs . . . . .030
Same in a purser's or creditor's suit for a siun not
exceeding £20 . . . . .010
Fieri facias for execution within the Stannaries .050
Same with warrant for execution out of the Stan-
naries . . . . . .050
Attachment . • . . .050
All the Court fees on the trial of issues will be the
same as on trials in actions by writ at conunon
law.
TABLE Olf FEES.
Bailiit*8 Fbbs.
£ «. d.
For executing process of attachment, contempt,
fieri facias, or other writ of execution, a fee not
exceeding . . . . . 10
For the same, every day after the first, when
necessary . . . . .050
If the process be executed at a distance beyond
three miles from the Registrar*s Office, or abode
of the bailiff, then for every mile beyond such
three miles there may be allowed, reckoning one
way only . . .010
Usheb's Fbes.
At the hearing of every original petition .026
For every subsequent day of hearing the same
petition . . . . .010
For every motion before the Vice Warden .010
On the swearing of every witness in Court .010
On the same in purser's or creditor's suits for sums
not exceeding £50 . . . .006
Signed, Edwaed Smibke, Esq., Vice Warden, &c.^
10th day of April, aj). 1856.
TABLE OF GENEBAL EULES AND OEDERS
AT COMMON LAW.
SuiTO BY Plaint.
Plaints, Snmmons, and Sendee thereof
Parties to Plaints
Parties under Age
Payment of Money into Court
Inspection of Documents
Discontinuing the Suit
Defence. — Objection to Jurisdiction
Special Defences
Particulars of Demand, or of Set-off
Security for Costs
Trial or Hearing, and Judgment
Execution ....
Costs ....
Amendment
Abatement of Suits
Proceedings in the nature of Scire Faci^
Proceedings by or against Executors, &c.
Causes remitted from the Coimty Court
Miscellaneous Eules
Page
70
73
75
76
77
77
78
79
80
81
81
85
89
90
93
94
95
96
98
SCHEDULB OF FoSMB.
(A.) Plaint . . . . .101
(B.) Summons . . . . .102
(C.) Undertaking by next Friend of Infant . 104
(D.) Order appointing Guardian of Infant . 104
(E.) Execution out of the jurisdiction . .105
(F.) Summons to have execution on a judgment after
the death of a Party . . .108
(G.) Summons on judgment of Assets in futuro . 110
Schedule of Court Fees
112
be CONTENTS.
Suits by Weit.
Page
Writ of Summons and Service thereof
114
Appearance . . . .
117
Non-appearance on writs specially indorsed
118
Joinder of Parties— Plea in Abatement
120
Joinder of causes . . . .
124
Parties under age
125
Actions by Paupers
125
Security for Costs
125
Declaration and Pleadings .
125
Particulars of Demand and Set-off
131
Payment into Court
132
Admission of Documents
133
Judgment by Default
134
Notice of Trial, &c. ...
135
Costs of the day . . . ,
136
Compelling Plaintiff to proceed to trial
136
Order for inspection of Property or Documents
136
Actions on lost Instruments
137
Practice and Evidence on Trials and Inquiries
187
Examinations out of Court
142
Trial by the Court by consent
142
Motions for new Trials
143
Judgment
145
Execution
146
Revival of Judgments
149
Discontinuance
151
Abatement of Actions
151
Amendment
155
Demurrer
156
Motions and Rules
157
Affidavits .
159
Stay of Proceedings
160
Taxation of Costs, and setting off Costs, or Damag
es 160
Service of Rules
, ,
161
CONTENTS.
67
Proceedings in Ejectment
Claim of Injunction
Miscellaneous Rules
Interpretation of the Rules
Page
163
170
172
173
SCHEDUJUB OF FoBMS.
(A.) Writ of Summons . . . .175
(B.) Special indorsement on a writ . . 176
(C.) Judgment by default on a writ so indorsed . 177
(D.) Declaration and Pleadings . . . ib.
(E.) Notice to admit documents . . .183
(F.) Judgments . . . . .185
(G.) Writs of Execution . . .186
(H.) Rule or summons to revive a Judgment . 190
(I.) Writ of Revivor . . . . ib.
(K.) Writ of Ejectment . . . ,191
(L.) Judgment in Ejectment for Non-appearance . 192
(M.) Issue in Ejectment . . . .193
(N.) Entry of verdict in Ejectment . . ib»
(0.) Judgment in Ejectment on Discontinuance . 194
(P.) Same for not proceeding to Trial . . ib.
(Q.) Same on Confession . . . .195
(R.) Execution in Ejectment . . . ib
(S.) Indorsement claiming an Injunction . 198
Schedule of Coobt Fees . . 199
RuiiES, OeDEBS, and REGUIiATIONS FOB THE CON-
DUCT or Business in the Office of the
Registbab, and fob otheb mattebs appli-
cable to the Coubt oeneballt . . 203
GENERAL RULES AND ORDERS OF
THE COURT.
COMMON LAW SIDE.
The Vice Warden of the Stannaries, with the consent
and approval of the Honourable Sir William Erie,
Knight, one of her Majesty's Justices assigned to hold
Pleas before the Queen herself, and by authority of an
act passed in the 18th year of the reign of her present
Majesty, entitled " An Act to amend and extend the
jurisdiction of the Stannary Court," and in pursuance
and execution of all other powers enabling him in that
behalf, doth hereby Oedee and Dieect that upon and
after the several days hereinafter specified, in this
present year of our Lord 1866, all existing written
general rules and orders of the Court on the common
side thereof shall cease and be no longer in force,
except so far as may be necessary to give effect to any
step or proceeding in a cause theretofore taken ; and
that upon and after the said days respectively the
following rules and orders, with the schedules annexed
thereto respectively, shall be the general rules and
orders of the said Court on the common law side
thereof.
70
OENEBAL ORDERS.
I. AS TO SUITS COMMENCED BY PLAINT.
The following rules and orders shall come into force
on the first day of June instant, except as aforesaid ;
(ante, p. 69) ; that is to say : —
PLAINT, SUMMONS AND SERTIOE THEREOF*.
1. Suits on the common law side of the Court,
prosecuted in a summary way by plaint under the
16th section of the Act 18 Vict. c. 32., shall be
commenced by entering a plaint in writing, in which
are to be stated the name and address of the plaintiff,
the name and the address, if known, of the defendant,
and the cause of action with the amount of the debt,
demand, or damages sought to be recovered against the
defendant. If the plaintiff prosecutes by attorney
the attorney's name and address are to be subscribed
to the plaint.
The plaint may be in the form (A.) in the Schedule
of Forms annexed.
2. The plaint is to be taken to the Secretary of the
Vice "Warden, who will deliver to the plaintiff a sum-
mons requiring the defendant to appear and answer
the plaint, and notifying to him the place and day of
the sittings of the Court at which he must be in
attendance in person or by his attorney, with his wit-
nesses. The summons is to be in the form (B.) in the
schedule annexed, and certain notices specified in the
PLAINT, SUMMOirS, AlfD SEETTCE THEBEOT. 71
schedule are to be subjoined thereto. It must be so
served as to leave ten clear days, at least, before the
day appointed for trial.
3. The plaint and summons are to be taken by the
plaintiff or his attorney to the Eegistrar, who will seal
the summons and record the plaint.
4. The summons, with a copy of the plaint, is to be
served on the defendant in person, wherever this
may be practicable, within the jurisdiction of the
Court, or if^ after due endeavours this cannot be
effected, then on his wife, servant, or other member
of his family apparently of an age of discretion,
at his dwelling house or his place of business : — If
the defendant be working underground in any mine,
it may be served on the captain or other person on
the mine superintending the works ; — and in the above
cases of service other than personal, it shall be deemed
sufficient if it shall appear upon the oath of the bailiff,
or other proof, that due endeavours were made to
effect personal service, that the object of the summons
was explained to the person served, and also that there
is reasonable ground for presuming that the plaint and
summons must have come to the knowledge of the
defendant in time to enable him to appear, or to give
instructions to appear, and answer.
The service of the summons is to be by shewing the
original simimons and leaving a copy of it and of the
plaint.
5. Where the bailiff or person serving is prevented
from effecting personal service on the defendant in
either of the modes prescribed by Eule 4, either by
72 OEITEBAJi OBD£BS — PLAIITTS.
threats or violence on the part of the defendant, or
by his wilfully keeping house, or keeping out of the
way, or absconding to avoid service, the service shall
be good if the process be openly left as near to him as
possible in the £u*st case, or be affixed to the door of
his place of abode or of business in the other cases.
6. As soon as conveniently may be after service,
the bailiff, who serves it, is to indorse on the original
summons the particulars as to when, where, how and
on whom he served it.
7. The service must be within one calendar month
after the date of the summons, after which it must be
renewed if the plaintiff intends to proceed with the
suit.
8. The suit wOl be taken to have been commenced
on the day of entering the plaint with the Registrar.
9. With respect to the particulars contained in the
plaint: — The plaint must allege, or shew on the face of
it, that the cause of action is one of which the Court
has cognizance either by reason of the person or
persons suing or sued, or by reason of the subject
matter of the suit; and must also shew in which of the
two Stann^es it arose.
10. The word " mine" and the addition of " miner"
used in any plaint wOl be presumed and taken to mean,
respectively, a metaUic mine within the jurisdiction of
the Court, and a miner in some such mine or work
within the said jurisdiction and having privilege to
sue or be sued in the Court of the Vice Warden.*
11. J£ the cause of action is one which arose in the
* 18 Vict c 32, s. 2.
PLAiKT, smncoirs, jlsd sebtice thebeof. 73
Stiaimaries of Devon, it must appear on the plaint to
relate to mines, or some of the other matters specified
in sect. 32 of the Act 18 Vict. c. 32.
12. AH &cts, dates, figures, and sums are to be
stated truism the plaint, so far as the same are known
to the plaintiff or can be readily ascertained ; and are
to be stated with reasonable particularity so as to
dispense with the necessity of further particulars,
except under special circumstances.
13. Different causes of action by and between the
same parties in the same rights, for debts or damages
not exceeding in the whole the amount recoverable in
one plaint, may be joined in the same plaint, subject,
however, to such directions as the Vice Warden shall
think fit to make as to the separate trial of them.
14. A cause of action shall not be divided for the
purpose of recovering the whole demand in several
suits ; but a plaintiff may, by expressly abandoning
the excess of his demand beyond 50^. either in and by
his plaint, or by a written declaration delivered to the
defendant or filed in the of&ce before or at the trial,
sue for and recover the residue.
FABTIES TO PLMKTS.
15. Claims by a husband in his own right may be
joined with claims in right of his wife, in which his
wife must be joined as plaintiff.
74 GEKEBAL OBDEHS — ^PLAnTTS.
] 6. Personal representatiyes may be parties to suits,
as such, by plaint, if in other respects privileged to sue
or be sued in the Court of the Vice Warden.
17. An infant under the age of twenty-one years
may sue by plaint for wages, piece-work, or work as a
servant, as if he were of full age.
18. The defendant may before trial require that any
person, who ought to be joined as a plaintiff, should
be so joined, and for that purpose the defendant must
within four days after service of the plaint deliver to
the plaintiff a written notice requiring that the persons,
omitted as plaintiffs, be made co-plaintiffs ; and there-
upon the plaintiff may amend accordingly without
payment of costs to the defendant ; but if he shall
refuse or neglect so to amend before trial, such
amendment shall not be made, at his own instance, at
the trial.
19. AVhere there is a cause of action against two or
more persons jointly answerable to the plaintiff^ it
shall be sufficient if either or any of such persons be
sued or served with process, and there may be judgment
and execution against the persons served notwithstand-
ing that the others so jointly liable may not have been
sued or served, or may not be within the jurisdiction
of the Court ; and the persons sued may avail them-
selves of a set-off, or other defence, as if all had been
joined.
As to MisJonmEB and KoirjonnDiB, see further,
pOBt, title AMEKDMEIfT.
¥ABTI£8 US DEB AGE. 75
PABTIES UKDEB AOE.
20. Where an in£uit applies to enter a plaint for
any cause of action, other than for wages or piece-
work, or for work as a servant, he must attend with a
next friend at the office of the Eegistrar at the time of
entering the plaint, and no plaint shall be entered
until the next friend has undertaken, in the form (C.)
in the schedule annexed, to be responsible for costs ;
and on entering into such undertaking, he shall be
liable in the same manner and to the same extent as
if he were a party in an ordinary suit, and the cause
shall proceed in the name of the infant by such next
friend; and such undertaking shall be filed by the
Begistrar, and no order of the Court shall be necessary
for the appointment of such next friend. K the
plaintiff &il in, or discontinue, his suit, and shall not
pay the amount of costs awarded by the Court to be
paid by him to the defendant, such proceedings may
be taken for the recovery of such amount from the
next friend as for the recovery of any debt or damage
ordered to be paid by the same Court.
21. Where an in&nt defendant appears at the
hearing, and names a person willing to act as guardian,
and who then assents so to act, such person shall be
appointed guardian accordingly ; but if the defendant
does not name a guardian, the Court may appoint any
person present willing to become guardian, or, in default
of such person, the Court may appoint an officer of the
E 2
76 aSKEBAL 0SDSB8 — ^PLAIKTS.
Court to be guardian, and the cause shall proceed
thereupon as if another person had been appointed
guardian ; and the name of the guardian appointed
shall be entered in the forms (D.) in the schedule,
and no responsibility shall attach to the person so
appointed guardian.
PATMEKT OP MOlfTET DTTO COimT.
22. Where the defendant is desirous of paying the
whole, or any part of the demand in full satisfection of
the whole, into Court, it must be so paid to the Begis-
trar four clear days at least before the day appointed
for trial of plaints, with costs to the time of payment
to be fixed by the Eegistrar, and the court fee; and the
defendant must also give or cause to be given to the
plaintiff notice thereof within twenty-four hours after
such payment ; but where money is so paid in less than
such four clear days, the defendant must also pay such
costs, if any, as the plaintiff may have incurred in
preparing for trial before the notice of such payment
was received by him.
23. If the plaintiff elects to accept, in full satisfac-
tion of his claim, such money as shall have been paid
into Court by the defendant, and shall send to the
defendant, or leave at his dwelling or place of business
a written notice, stating such acceptance, two days, or
within such reasonable time as the notice of payment
has permitted, before the day of trial, the %;tion shall
PATMBITT OF MONET INTO COUET. 77
abate, and the plamtiff shall not be liable to any
further costs.
rNrSPECTION OP DOCrMENTS.
24. Where in any action either party is desirous
of inspecting any contract, deed, memorandum, or
other written instrument, the inspection of which
shall appear to be material to the maintenance of his
case, and which is in the possession, power, or control
of his opponent, and he shall give reasonable notice
to his opponent that he desires to inspect such instru-
ment, if the opponent shall neglect or refuse to appoint
a time and place for inspection, or to allow the party
applicant or his attorney to inspect it within two
days after receiving such notice, the Vice Warden or
Eegistrar may, in his discretion, order such inspec-
tion, and, if need be, enforce such order by staying
proceedings until it be allowed, and by making such
order as to costs as he shall think fit.
DISCONTINriNG THE SUIT.
25. If the plaintiff be desirous of not proceeding
in the cause, he may discontinue on giving notice
thereof to the defendant, and paying, or offering to
pay, taxed costs, and paying the same accordingly
when taxed. If not paid forthwith after taxation,
the defendant will be entitled to appear and claim full
costs as in case of nonsuit.
78 GENEBAL OBDEBS — FLAIim,
DEFEirCB — OBJECTIOK TO JrBlSMCTIOK.
26. If the defendant intends to object to the juris-
diction of the Court in the particular suit, he must
file a demurrer or plea to the jurisdiction at the
Eegistrar's Office within ten days after service of the
copy of the plaint on the defendant, that is to say, on
or before the tenth day after the day of such service ;
and he must also forthwith give, or cause to be given,
to the plaintiff notice of the filing of such demurrer
or plea.
27. A demurrer to the jurisdiction may be in the
following form, or to the like effect, viz. :
A. B. -^ The defendant objects that it does not
V. > appear by the plaint that the Court has any
C. D. J jurisdiction in this cause.
28. A plea to the jurisdiction may be in the follow-
ing form, or to the like effect, viz. :
, A. B. -| The defendant denies that the Court has
V. > any jurisdiction in this cause, for that [here
CD. J state the groimds of objection ; for example :
" that neither the plaintiff^ nor defendant are miners,"
or "that the plaintiff* (or the defendant) is not a
"miner, and that the cause of auction did not a/rise
" toithin the Stannaries, or in any way relate thereto,^*
29. If the defect of jurisdiction, or any other defect
in the plaint objected to by the defendant, can, con-
sistently with the facts of the case, be remedied by
amendment, the plaintiff may forthwith apply to the
OBJitonoir TO jubibdiotiok. 79
[Registrar to amend the plaint, or the Court will
amend at the hearing or trial, and the costs of amend-
ment shall, in either case, be in the discretion of the
Court or Eegistrar, as the case may be.
30. If the objection to the jurisdiction be over-
roled, or the plea disproved at the hearing or trial,
the defendant must be prepared to try the cause on
the merits immediately, unless the Court shall think
fit to adjourn the trial to another day, or give further
time to the defendant on suf&cient cause shewn and
an reasonable terms.
SPECIAL DE7EVCES.
31. A tender will be no defence, unless the money
tendered be paid into Court at or before the trial.
32. If the plaintiff sues as executor or adminis-
trator, or the defendant is sued in that character, the
defendant will not be allowed at the trial to dispute
such character unless he shall have given, or caused
to be given, to the plaintiff a notice in writing of his
intention to dispute it four clear days at least before
the day appointed for appearance.
33. If the plaintiff sues as assignee of a bankrupt
or insolvent, or if the plaintiff sues or the defendant
is sued as the public officer of a company or body
qualified to sue or be sued by such officer, the defend-
ant will not be allowed at the trial to dispute such
character, unless he shall have given, or caused to be
given, the like notice as in the last rule is required.
so GEKZBAL OSDEBS — PL^IirTS.
34. The defendant will not be allowed to gire
evidence of a set-off at the trial, unless he shall have
given like notice thereof to the plaintiff as in the above
rules is required, stating the nature, amount, and time
of accruing thereof, as in the case of a plaint.
35. The notice required by Eules No. 22, 23,
24, 25, 26, 32, 33, 34, may be given by letter, post
paid, sent to the plaintiff or defendant (as the case
may be) by the address specified in the plaint, or
other known and sufficient address, in all cases where
such address is at a place within a post town or within
the ordinary delivery of such a town.
36. All other defences, except those above specified,
may be set up and given in evidence at the trial with-
out any plea or notice thereof, unless the Vice Warden
shall otherwise order, subject however to the power of
adjourning the trial of the cause at his discretion in case
of surprise, &aud, misapprehension, mistake as to notice
required for special defences, or other sufficient cause.
PARTICULABS OF DEMAND, OE OP SBT-OPF.
37. Where the plaint alleges the cause of action in
words so general as to give no reasonable or suffi-
cient notice to the defendant to enable him to prepare
his defence, the defendant may obtain from the Regis-
trar a summons for a further particular which may
be ordered accordingly by him if he shall think the
application reasonable ; and the costs of application and
stay of proceedings shall be at his discretion ; and the
PABTICX7LABS OF DEMAITD, OB OF SET-OFF. 81
like order may be made where the notice of set-off is
defective on the same grounds. But no objection
on the above grounds shall be admitted at the trial
unless the Vice "Warden shall, upon the evidence,
think it necessary for the purposes of justice to post-
pone the trial or think fit to reject evidence of the
set-off by reason of such defect in the plaint or notice
of set-off.
SECrBITT FOB COSTS.
38. If the plaintiff, or all the plaintiffs, reside out
of the jurisdiction, the defendant may apply to the
Registrar for an order on the plaintiff or plaintiffs
to give security for costs to the satisfaction of the
Begistrar if he thinks fit, and in the mean time to stay
proceedings.
TBIAL OB HEABING, AND JUDGMENT.
39. The parties in any cause standing for trial,
may by consent previously given in writing, signed
by them or their attomies, as the case may be, or by
consent in open Court when the cause is called on,
leave the decision of any issue of fact or assess
ment of damages to the Court; and the finding of
the Vice "Warden upon such issue shall be of the
same effect as a verdict, and be followed by like
judgment and proceeding as on the verdict of a
jury, save only that it shall not be questioned on
B 3
82 0ENEBAL ORDEBS — PLAHfTS.
the ground of its being against the weight of evi-
dence.
40. No notice of trial shall be necessary other than
the notice contained in the summons, unless the Vice
Warden shall otherwise order; and no entry of
appearance shall be necessary other than appearance
in person or by attorney on the day and time named
in the smnmons.
41. On the day before the first day appointed for
trial of plaints, the Eegistrar is to prepare for the
Court a list of all plaints standing over from the last
sittings, or entered since the last sittings, and not dis-
continued, or known by the Eegistrar to be settled or
otherwise disposed of, arranging them in the order of
their dates of entry.
42. The parties and their witnesses must be in
attendance at the sitting of the Court at the day and
time appointed for the trial of plaints, and specified in
the summons, whensoever their respective causes may
be called on.
43. J£ neither party shall appear when the cause is
called on, it shall be struck out.
44. If the defendant appears, but the plaintiff does
not appear, judgment of nonsuit will be given with
costs to be paid by the plaintiff.
45. If the plaintiff appears, but the defendant,
being duly summoned, does not appear in person or
otherwise, to defend the suit, the cause shall, on satis-
factory proof of regular service of the summons and
of a copy of the plaint, be heard ex parte in the
absence of the defendant, who shall be bound by the
TBIAL OB HEABIN&, AKD JUDGMENT. 83
verdict as if he had been present; and where the
plaint is for payment of a debt certain or liqui-
dated demand exceeding 201,, claimed in and by such
plaint to be due to the plaintiff on some instrument
or contract in writing to which the defendant is
therein alleged, or shewn, to be a party, and personal
service is satisfactorily proved, there shall be judg-
ment for the plaintiff by default to the amount
i^laimed, without further inquiry or proof.
46. The general rules of evidence and of practice on
the trial of issues in actions commenced by writ of siun-
mons are to be observed in and applied to the trial of
actions by plaint in cases where the present rules do
not otherwise provide; and examinations or deposi-
tions taken and sworn out of Court by direction of
the Vice "Warden shall, under like circumstances, be
admissible.
47. The power of the Court to adjourn the trial of
a cause, if, and on such terms as, it shall think fit,
may be exercised as on trials in actions commenced
by writ of summons.
48. K upon the cause being called on, and before
the jury are sworn, the parties shall agree on the state
of facts, the Court may proceed to give judgment
without the intervention of a jury.
49. If the defendant in person, or by a writing
indorsed on the plaint or summons and signed by him,
and proved by some witness other than the plaintiff or
the attorney of the plaintiff, shall confess the amount
of the debt or damages claimed in the plaint, judg-
84 eENEBAL OBDEBS — PLAIKTS.
ment may be forthwith signed against the defendant
for the amount so confessed and for the taxed costs
without the intervention of a jury; and such judg-
ment may be signed by the Registrar on such con-
fession and proof by oath before him at any time
after the plaint shall have been entered, without fur-
ther order of the Vice Warden ; or judgment may be
given upon such confession and proof before the Court
at the sittings. If the amount confessed be part only
of the debt or damages claimed, and the plaintiff
consents to accept such part in full of his demand,
judgment may in like manner be signed for such
amount and costs.
50. After trial and verdict, judgment may be
given and signed forthwith, and immediate execution
ordered ; but unless such immediate execution be
ordered, execution shall not issue until the end of two
days after the day of trial, during which time applica-
tion may be made to the Vice Warden for a new
trial or nonsuit, or for setting aside the verdict, or
entering a verdict, or to arrest the judgment ; and a
rule nisi granted thereon shall not operate as a stay
of proceedings unless the Vice Warden shall otherwise
order.
51. The minute of judgment made by the Begistrar
shall be a sufficient signing of judgment to warrant
execution.
52. When a new trial is granted, the Vice Warden
may, in his discretion, make it a condition of granting
such new trial, that the party obtaining the rule do.
TBllL OB HSABIKG, AKD JUDGMENT. 85
consent to try on some day at the same sittings before
a jury of persons qualified to serve as jurors in the
Vice Warden's Court (subject, nevertheless, to chal-
lenge, and to the provisions of 6 & 7 Wm. 4. c. 106.
for completing the requisite number of jurors), although
such persons may not have been among the jurors
summoned by the Eegistrar, before the first day of
sittings.
53. If the judgment of the Court is generally for
recovery of money or costs or both, the same shall
thereby be and become payable without further
notice or demand. But the Court may make an
order for payment of the monies so recovered in
a certain manner, or at a certain time, or by certain
instalments ; and upon any default of payment in
pursuance of such special order, the whole of the
monies recovered by the judgment, and rem ainin g
unpaid, shall be and become payable immediately
without further order or demand; but such monies
shall not be made payable by instalments without the
consent of the plaintifi*, where the debt or damages
recovered exceed 201.
EXECTITION.
54. When the judgment is general, a writ or writs
of execution by Jleri facias, to be executed within
the jurisdiction, may be sued out and issued as of
course.
55. When there is an order for payment, specifying
B6 OEmSEAL OEDEES — PLAIISTTS. '
a particular manner or time of payment, or payment
by instalments, no writ of execution shall be issued
until default of payment in pursuance of such order ;
and upon any such default, to be proved by affidavit
to the satisfaction of the Vice Warden or Eegistrar,
execution by fieri facias may then issue, as of course,
for payment of the whole of the monies recovered
by the judgment and remaining unpaid.
66. If there be cross judgments between the same
parties, execution shall be issued only for the differ-
ence between the sums recovered, and by the party
entitled to such difference ; and upon satisfaction of
such difference, if any, satisfaction of both judgments
shall be entered up.
57. Writs of fieri facicta for execution, whether
against the goods of the defendant or of the plaintiff,
or the claimant in interpleader, may be in the same
form, mutatis mutandis^ as writs of fieri facias issued
in proceedings by writ of summons in this Court, with
like indorsements, but without the clause for levying
interest.
58. If no goods and chattels, or no sufficient goods
and chattels, of the party against whom the writ of
fieri facias issues, can be found within the jurisdiction
of the Court to satisfy the monies directed to be
levied under it, and the Vice Warden, or the Eegistrar
when the Court is not sitting, be satisfied thereof either
by a return of nulla bona, or of an insufficient levy
by the bailiff under such fieri facias, or by proof by
affidavit or otherwise that payment cannot be conve-
EXECUTION. 87
niently or effectually enforced by the ordinary process
of the Court within the jurisdiction thereof, then a
writ or writs of execution, to be executed by the high
bailiff of any County Court out of the jurisdiction,
may be sued out without special leave or order of the
Court for that purpose. The writ and warrant to the
clerk of the County Court may be in the forms (E.) in
the Schedule annexed.
59. When the sum recovered exceeds 20L exclusive
of costs, and the Vice Warden, or the Registrar when
the Court is not sitting, shaU be satisfied by such
return or proof as in the last rule is specified, that the
party against whom the writ issued has no goods and
chattels, or no sufiGlcient goods and chattels, that can
be found within the jurisdiction to satisfy the monies
to be levied, then a writ of capias ad satisfaciendum
may be issued, in the form of the like writ issued in
proceedings by writ of summons in this Court, and
with like indorsements, but without the clause for
levying interest.
60. If the monies recovered be in respect of a debt
or pecuniary liability,* and it shall at any time appear
to the Vice Warden that the defendant, in incurring
such debt or liability, has obtained credit under false
pretences, or with a fraudulent intent, or has wilfully
coniaracted such debt or liability without reasonable
assurance of being able to discharge the same, or shall
have made or caused to be made, any gift, delivery, or
* See Act 7 & 8 Vict. c. ^6. s. 59.
88 OENEEAL OBDEBS — PLAINTS.
transfer of personal property, or removed or concealed
the same with intent to defraud any creditor or'
creditors, then the Vice Warden may, if he thinks fit,
order that the defendant be taken and detained in
execution upon the judgment for a time not exceeding
six calendar months, although the smn recovered by
the judgment be less than 20Z., or do not exceed 20^.,
exclusive of costs, and whether execution shall have
issued against the goods and chattels of the defendant
or not.
61. Writs of execution shall bear date on the day
of issuing, and shall continue in force for one year
and no longer.
62. All writs of execution shall be returnable im-
mediately afber execution thereof.
63. Writs of execution may issue on a judgrwent
less thnn fotir years old, without special leave or order
of the Vice Warden for that purpose, unless such leave
or order be required by the practice of the Court on
grounds other than lapse of time. If the judgment
be four years old or more, a special application for
an order must be made.
64. Payment of, or tender of, the amount indorsed
on the writ of execution to the party prosecuting the
writ, or his attorney, or to the bailiff, before actual
sale of the goods seized, or before delivery of the body
into the custody of the gaoler, shall entitle the party
against whom the writ issued to immediate release and
discharge of his goods and person.
65. Upon payment to the bailiff, he shall, within
BIEOUTIOW. 89
twenty-four hours afterwards, pay over the money
leceiyed to the party prosecuting the writ, or to the
Eegistrar for his use.
66. The costs of unexecuted warrants will not be
allowed as against the opposite party, unless the Vice
Warden shall otherwise order.
COSTS.
67. AJl costs in the suit, not herein otherwise pro-
vided for, may be apportioned between the parties in
such manner as the Court shall think fit, and in
default of special direction shall abide the event of
the suit, or the finding and judgment on each issue, if
there be several issues, as in the case of actions by
writ ; and it shall not be necessary that the costs be
taxed while the Court is sitting.
68. Notice of taxation shall not be necessary when
the defendant has not appeared ; and where the de-
fendant has appeared, and immediate execution is
ordered, notice in Court at the close of the trial shall
be sufiGlcient.
69. Execution may issue for costs alone in like
manner as for debt or damages recovered.
70. Where the plaintiff shall be proved, to the satis-
&ction of the Eegistrar, to be a pauper, in the legal
import of the word, the Eegistrar shall remit the Court
fees, and may disallow or reduce the fees of attomies
OP advocates at his discretion. But if the suit be
90 GEl^EBAL OBDEBS — PLAIKTS.
vexatious, or be vexatiously conducted, or the plaintiff
be guilty of gross neglect or misconduct in the pro-
ceedings, no such exemption or favour shall be
allowed.
71. If the plaintiff enters a fresh plaint after non-
suit for the same cause of action, proceedings may be
stayed tiU payment of the costs in the first suit.
AMENDMENT.
72. No misnomer or inaccurate description of any
person or place in a plaint or summons shall vitiate
it, if the person or place be so described as to be
commonly known.
73. Where a party sues or is sued in a representa-
tive character, who ought to have sued or been sued in
his own right, or where a party sues, or is sued, in his
own right, who should have sued or been sued in a
representative character, the Vice Warden at the trial,
or the Eegistrar before trial, may, at the instance of
either party, and on such terms as he shall think fit,
amend the proceedings accordingly, and the case shall
then proceed in all respects, as to set-off and other
matters, as if the proper description of the party had
been given in the summons.
74. Where the name or description of a plaintiff' ia
the plaint or siunmons is insufficient or incorrect, —
or where the name or description of a defendant in
the plaint or summons is insufficient or incorrect^
UMnimMENT. 91
and the defendant appears and objects to the de-
scription, — it may be amended on such terms as
shall be thought fit, and the cause may proceed,
as to set-off and other matters, as if the name or
description had been originally such as it appears
after the amendment has been made ; but if no such
objection is taken, the cause may proceed, and in the
judgment and all subsequent proceedings founded
thereon the plaintiff or defendant may be described in
the same manner.
75. In actions by or against a husband, if the wife
is improperly joined or omitted as a party, the plaint
and summons may at the hearing or before the trial be
amended at the instance of either party on such terms
as shall be thought fit, and the cause may proceed as
to set-off and other matters, as if the proper person
had been made party to the suit.
76. Where it appears, at the trial, that a greater
number of persons have been made plaintiffs than by
law required, the name of any person improperly
joined may, at the instance of either party, be struck
out on such terms as shall be thought fit, and the
cause may proceed, as to set-off and other matters, as
if the proper party or parties only had been made
plaintiffs.
77. Where it appears at the trial that a less number
of persons have been made plaintiffs than by law
required, the name of the omitted .person may, at the
instance of either party, be added on such terms as
the Court shall think fit, and the cause shall proceed
IM9 if the proper persons had been originaDy made
92 GEITERAL OBDBBB — FLAIKTS.
parties, provided that the person whose name is so
added shall assent thereto, either at the trial or some
adjournment thereof, personally or by writing signed
by him or his attorney.
78. Where it appears at the trial that more persons
have been made defenda/nU than by law required, the
name of the party improperly joined may, at the
instance of either party, be struck out by order of the
Court on such terms as shall be thought fit, and the
cause shall proceed as if the remaining party or parties
only had been sued.
79. Where several persons are made defendants, and
all of them have not been served, the name or names
of the defendant or defendants who have not been
served, may, at the instance of either party, be struck
out on such terms as shall be thought fit, and the
cause shall then proceed in all respects, as to set-off
and other matters, as if all the defendants had been
served.
80. Where at the trial a variance appears between
the evidence and the matters stated in any of the
proceedings in the Court, such proceedings may, at
the discretion of the Vice Warden, and on such terms
as he shall think fit, be amended ; and all powers of
amendment which are now, or may hereafter be,
lawfully exercised by the Vice Warden, whether
sitting, or out of Court, or by the Eegistrar, in actions
commenced by writ, shall be in like manner exercise-
able in proceedings by plaint, so far as they are
applicable thereto.
81. In all cases of amendment, a corresponding
AKEKBMJBKT. 93
smendment shall be made in the proceedings of the
Court antecedent to such amendment, and the subse-
quent proceedings shall be in conformity therewith.
ABATEMENT 07 SUITS.
82. In case of the death of a sole, or sole surviving,
plaintiff hefore judgment, the personal representative
of the deceased may, by order of the Vice Warden, or
of the Eegistrar when the Court is not sitting, be sub-
stituted for the deceased as plaintiff in his representa-
tive character on such terms as shall seem to him just,
and the suit shall then proceed as if the representative
had been originally the plaintiff.
83. Where one or more of several plaintiffs or
defendants dies 'before judgment, the suit shall not
abate, if the cause of action survives to or against
such parties.
84. Where one or more of several plaintiffs or de-
fendants shall die after judgment, proceedings thereon
may be taken ly the survivors or survivor, or agamst
the survivors or survivor, without leave of the Court.
85. Where a married woman is sued as a feme sole,
and she obtains judgment on the ground of coverture,
proceedings may be taken thereon, in the name of the
wife, at the instance of the husband, without leave of
the Court.
86. Marriage of a woman, plaintiff or defendant,
shall not abate the suit, but it shall proceed to judg-
94 GENEBAL OBDBBS — PLAIKTS.
ment, notwithstanding ; and judgment against her may
be executed against herself alone ; and judgment,^
her may be executed by authority of her husband.
87. Where the plaintiff has become bankrupt or
insolvent the cause may proceed to judgment and
execution at the instance of the assignees in the name
of the plaintiff, on their giving security for costs to the
satisfaction of the Eegistrar, if required ; otherwise
such bankruptcy or insolvency shall be a defence.
PBOCEEDINGS IS THE KATUBE OP SCIBE PA0IA8.
88. Execution on a judgment shall not issue by or
against any person not a party to the suit without
a summons founded upon, and reciting, the judgment.
89. The summons, in the nature of a scire faciat on
a judgment, is to be considered and dealt with as a
plaint as well as a summons, and served in like manner;
but the party summoned will not be permitted to set
up any defence at the trial or hearing thereof, which
would have been an answer to the original plaint, or to
question the original judgment.
90. A siunmons by or against the personfd repre.
sentatives of a deceased party to have execution shall
be in the forms (P.) in the Schedule annexed, with the
notices subjoined thereto ; and the directions contained
in the said notices shall be observed and pursued, and
the notices therein required to be given hy the party
served may be given in the manner specified in Biild
35.
PBOCSSDnros is katueb or scibs pacias. 95
91. Writs of execution awarded on such summons
may be in the form of like writs issued on ordinary
judgments by or agsdnst executors or others ; but must
shew on the face of them the change of party by death
or otherwise, and the award of execution.
PBOOBEnnras by akd agaikst eiectitobs, etc.
92. Executors and administrators, who are parties
to plaints in that character, must be so named in the
plaint.
93. A party suing an executor, &c. may allege in
the plaint that the defendant has wasted and misap-
plied the property of his testator since his death ; and
if the fact be so found, the judgment may be that the
debt and costs be levied on the goods of the defendant
himself to the extent of such wasting or misapplica-
tion, and as to the residue on the goods of the testator
injuturo.
94. Where a defendant admits himself to be execu-
tor and also admits the plaintiff's demand, and that he
has any assets in hand, he must pay the amount into
Court under the Eule No. 22, otherwise he will be
lisible to have judgment against him, with costs, to the
amount confessed.
95. Generally, judgment and execution shall be the
same, in substance, as would be given or issued in
like proceedings by or against executors and adminis-
trators by writ of summons.
96 OEinCBAX OBDEBB — PLAIHT8.
96. When judgment shall have been given against
an executor, &c. for debt and costs to be levied of the
goods of the testator, &c., which should thereafter
come into his hands to be administered, and such
goods shall have come into his hands, the plaintiff may
sue out and serve a summons in the nature of a scire
facias, reciting the unsatisfied judgment and alleging
assets, and calling on the defendant to show cause why
execution should not issue ; and such summons shall,
for the purposes of defence and trial, be considered
and dealt with as a plaint as well as a summons ; but
the party summoned will not be permitted to set up
any defence which would have been an answer to the
original plaint, or to question the judgment.
97. Such last-mentioned summons shall be in the
form (Q.) in the Schedule annexed, and be accom-
panied with the notice subjoined thereto.
98. Writs of execution awarded on such summons
may be in the form of like writs issued on judgments
against executors or administrators.
CAUSES EEMITTED EBOM THE COUKTT OOUBT.
99. When a cause shall be remitted by any judge
of a County Court within the Stannaries for trial or
hearing before the Court of the Vice Warden under
the power conferred by section 17 of the Act 18 Vict,
c. 32., the party at whose request the cause is remitted
is to file at the Eegistrar's Office a copy of the plaint,
CAirSXS BXlOTtSI) TBOM THE COUirTY COUBT. 97
particulars of plaint, summons, notices of special de-
fence, if any, and other written proceedings by and
between the parties ia the suit, such copy being cer-
tified by the judge of the said County Court or by the
clerk thereof; and no fee shall be taken for such filing
at theEegistrar's Office, if the plaintiff shall have already
paid fees upon the documents so certified in the County
Court. And upon such filing, the copy of the plaint
and particulars so filed shall be deemed and taken to
be in lieu of a plaint originally filed in the Court of
the Vice Warden, subject to such amendment, if any,
as may be necessary to show the jurisdiction of the
said Court in and over the cause so remitted ; and
the plaintiff shall be at liberty, upon application to
the Eegistrar, to make such amendment without pay-
ment of any Court fee for that purpose ; and there-
upon the Eegistrar is to issue ex officio^ and upon
payment to him of a Court fee of one shilling, a
notice in the form subjoined, and is to deliver the
same to the plaintiff or defendant for service on the
opposite party ; and at the trial or hearing of the cause
the notices of special defence, if any, given in the
origiaal suit shall be taken to be given by the defend-
ant to the plaintiff for the purpose of such trial, and
be available for such purpose : —
In the Court of the Vice Warden of the Stannaries.
Stannaries of Cornwall [or Devon] .
j^ B -V To A. B. of , and to C. D. of
V, > [to he described as in the plaint in the County
C- D, ) Court-].
"You are to take notice that, this c^use having
98 GEITESAL 0SDSS8 — PLAOTTS.
" been remitted for trial [or hearing] before this Court
« by -, Esq., Judge of the County Court of — ,
" you are hereby summoned to appear in person, or
" by your respective attomies, at the next sittings of
" this Court, to be held at , on , at the hour
" of in the forenoon, there to try the said caus^ ;
''and in the mean time subpoenas to compel the
"attendance of witnesses and the production of
" docimients may be obtained on application to ,
" at .
" K neither of you shall appear at the day and time
" aforesaid, the cause will be struck out. Dated, Ac.
" By the Court." (l. s.)
Provided that for aU steps or proceedings in the
cause, except those hereinbefore specified, like fees
shall be paid as in a case commenced by a plaint
originally filed in the Court of the Vice "Warden.
Provided also, that the plaintiff may, at his option,
commence de novo by filing a plaint in the usual form
in the last mentioned Court, whereupon the suit shall
proceed in all respects as in ordinary cases of suits
commenced in the said Court.
MISCELLAmSOUS.
100. The rules and practice as to computation of
time ; and as to the power of the Vice Warden or
Begistrar to enlarge or abridge the time for doing
any act or taking any proceedings in a cause ; and as
laSCELLAKEOUS. 99
to the power reserved to rectify mistakes or oversights
of the parties in respect of procedure, practice or
other matters, shall, where not inconsistent with these
present rules^ be the same as in other suits in this
Court not commenced by plaint ; and in cases not
otherwise provided for, the general practice and forms
of procedure in this Court in suits commenced by writ
of summons may be adopted, mutatis mutcmdis, and
applied to proceedings by plaint.
Permission to prosecute by writ instead of plaint
may be granted on application to the Vice "Warden
ex parte, founded on a statement of the circumstances
which, in the opinion of the applicant, make such
form of procedure desirable or proper; or such per-
mission may, at the discretion of the Vice "Warden,
and on such terms as he shall think fit, be granted
after proceedings by writ shall have been commenced
without such permission.
Corrigendum.^In the liue 2 of Rule 6, supra, p. 71, omit the word
"^ personal .**
f2
101
SCHEDULE OF FORMS.
SUITS BY PLAINT.
The Forms contained in the following Schedule may be
used in cases to which they are applicable with such
alterations as the nature of the suit, the character of the
parties, or circumstances of the case, may render necessary ;
but any variance therefrom, not being in matter of sub-
stance, will not affect their validity or regularity.
(A.)
FORM OF PLAINT.
In the Court of the Vice Warden of the Stannaries.
Stannaries of CJomwall [or Devon].
A. B. of [place of residence]^ miner, complains of C. D. of
[place of reeidence']^ miner, that he owes to the plaintiff the
sum of [state the true sum^ or balance duel, ^^^ grocery
and flour, sold on or about the day of
at within the Stannaries of in the
year
Or, for goods whereof the particulars are attached hereto
[or whereof the following are the particulars], sold on, &c.
Or, for work done by the plaintiff as a labouring miner
for the defendant in (or on) a mine, called in the
Stannaries of [Comwall], on, &c ;
Or, that the defendant unlawfully took away certain
ores of the plaintiff of the value of within the
Stannaries of [Cornwall], on, &c. ;
102 . SCilEDTTLE OF FORMS — PLAINTS.
Or, that the defendant is Indebted to the plaintiff on a
promissory note dated made by the defendant,
whereby he promised to pay to the plaintiff £5 two months
after date, which is now overdue.
Or, that the defendant assaulted and struck the plaintiff,
and did to him such bodily injury that he was unable to
work for days, and thereby lost wages to the
amount of , which he would otherwise have earned,
&c., and sustained farther damage, in the whole amounting
to the sum of , which he claims.
[Where only one of the parties is alleged to be a miner, it
should be shewn in the plaint that the cause of action arose
within the Stannaries, or relates to mines or minerals
therein. See also Rules, ante, No. 9, 10, 11, 12, 13.]
(B.)
FORM OF SUMMONS, WITH NOTICES.
In the Court of the Vice Warden of the Stannaries.
Stannaries of Cornwall [or Devon}.
To C. D. [the defendanf].
You are hereby summoned to appear in person or by
your attorney before the Vice Warden oi the Stannaries, at
the sitting of. his Court at [ Trtiro], on the day of
next [or instanf}, at the hour of ten o*clock in the
forenoon, to answer the complaint of A. B. of [name and
address of the plaintiff"], a copy of which is herewith left;
and you are then and there to bring with you, or cause to
be summoned, any witnesses whom you may desire to call
in support of your defence ; and if you do not appear at the
time and place above named, the Court will proceed to
judgment in your absence.
Dated this day of
By the Court. (i. s.)
N.B. — This summons must be served within one fft^pdw
month after date.
SCHIDITLS 01* VOBMS. 108
Take notice. If you object to the jurisdiction of the
Court of the Vice Warden in this cause, you must make
your* objection by filing a plea or demurrer (as the case
may be) at the office of the Registrar at [_Truro'], on or
before the tenth day after the day of serving you with this
summons.
[If the plaint is for a debt or other liquidated demand,
the two following notices must also be subjoined to the
summons^ :
Also take notice, that if you admit the debt or demand
of A. B. [the plaintiff] to be justly due to him, and will
write and sign such admission on the back of the summons
or of the plaint delivered to you, and will ddiiver it your-
self) or cause it to be delivered and proved, to the Registrar
at his office /owr clear days before the day of trial, you will
save yourself the expense and costs of a trial.
K your defence is that the plaintiff A. B. is indebted to
you in a larger sum than you are indebted to him, or in any
sum, you must give to him at least four dear days' notice in
writing before the day of trial that you intend to set up
such defence, and you must state in your notice the nature
and particulars of the plaintiff*s debt owing to you, and
must come prepared to prove that you gave such notice.
[If the plaifUiff sues as executor or administrator, or as
assignee of a bankrupt or insolvent, or the defendant is sued
in such character, the following notice must be subjoined].
" Also tare notice, that if you intend to deny that the
plaintiff A. B. is executor [or administrator or assignee as
the case may be] of ; or — " to deny that you C. D.
[the defendant"] are the executor [or administrator] of ;"
you must give to the plaintiff at least four clear days' notice
in writing of such your intention before the day of trial.
[Like notice must also be subjoined where either party
sues or is sued as a public officer. See Rule 38, atUe^ p. 79.
If the defendant is under the age of twenty-one, the word
"guardian" must be substituted for "attorney" in the
summons].
104 BCHED1TI.E or TOBUB— PLAOrTS.
(C.)
UKDEBTAKIHO BT KBXT FBIEND OF niFAlTT.
In the Cotirt of the Vice Warden of the Stannaries.
I, the undersigned, being the
next friend of A. B., who is an infant, and who is desirous
of entering a plaint in this Court against C. D., herebj
undertake and agree to be responsible for the costs of the
said C. D. in such cause, and that if the said A. B. fails to
paj to the said C. D., when and in such manner as the Court
shall order, all such costs of such cause as the Court shall
direct him to pay to the said C. D^ I will forthwith pay the
same to him.
Dated this day of
(Signed)
(D.)
OBDEB APPOINTING GUABDIAN OP INPANT DXPBNDANT.
In the Court, &c., [as above'].
Between A. B. - - plaintiff,
and
CD. defendant.
Whereas now, at the hearing of this cause, the de>
fendant, being an infant, appears here in Court, and names
to act as his guardian, and the said
now assents to aet as such guardian, the court
SCHEDULE OF FORKS 105
doth hereby appoint the said to be guardian of
the defendant in this cause.
Dated this daj of
By the Court. (l. s.)
OBDBB APPOIKTING QVARDIAS OF INFANT DEFENDANT WHBSB
DEFENDANT DOES NOT NAME ONE.
In the Court, &c., [as above']'
Between A. B., - - plaintiff,
against
C. D., - - defendant.
Whereas now, at the hearing of this cause, the de-
fendant, being an infant, appears here in Court, and does
not name a guardian, the Court doth hereby appoint
to be guardian of the
defendant in this cause.
Dated this day of
By the Court. (l. s.)
(E.)
1. WRIT OF FIERI FACIAS FOR EXECUTION AGAINST A DE-
FENDANT OUT OF THE JURISDICTION.
The Lord Warden of the Stannaries to the High Bailiff
of the County Court of greeting :
Whereas lately in a certain action commenced on the
common law side of the Court of the Vice Warden of the
f3
106 SOHEDULB or rOBMS — MiAIBTTS.
Stannaries, wherein A. B. is plaintiff and C. D. is defendant,
in a cause whereof the said Court has cognizanee, the
plaintiff by judgment of the said Court recovered against the
said C. D. the sum of for his debt [or for damage*
hy him sustained] and the further sum of for his
costs of suit by him in that behalf expended ; and whereas
the said judgment cannot be [conveniently or effeciuaUy']
enforced by the ordinary process of the last mentioned Court
within the jurisdiction thereof: These are therefore to
REQUIRE and coMBiAND you, in the name of Her Majesty
the Queen, and in pursuance of the statute in that case
made and provided, forthwith to make and levy by distress
and sale of the goods and chattels of the defendant, where-
soever they may be found within the district of the said
County Court (except the wearing apparel and bedding of
the defendant or his family, and the tools and implements
of his trade, if any, to the value of five pounds), the
said sum of and also the
costs of this execution ; and also to seize and take any
money or bank notes (whether of the Bank of England or
of any other bank), and any cheques, bills of exchange,
promissory notes, bonds, specialties, or securities for money,
of the defendant, which may there be found, or such part,
or so much thereof as may be sufficient for the satisfying of
this execution, and the costs of making and executing the
same, and that in the execution of this writ you proceed in
all respects as if this had been a warrant of execution issued
by the County Court of which you are the high bailiff, and
pay what you shall have levied under this writ to the clerk
of the said County Court, and make your return of what
you shall have done under this writ immediately upon the
execution thereof.
Dated this day of
By the Court. (l. s.)
[The debts or damages must not exceed £50].
SCHEBULX OF FOEMS. 107
[To be indorsed as follows : — ]
£ *. iL
Amount recovered by the judgment
Poundage for issuing the writ
Bailiff's fee for execution and mileage
Paying money into Court
Total amount to be levied £
2. THE SAME FOB EXECUTION AGAINST A PLAINTIFF,
FOB COSTS.
The Lord Warden, &c. [as above].
Whereas lately in a certain action commenced on
the common law side of the Court of the Vice Warden
of the Stannaries, wherein A. B. is plaintiff and C. D. is
defendant, for recovery of a debt [or of damages]^ not
exceeding 50/., in a cause whereof the said Court has cog-
nizance, the sum of /. was awarded by the said Court
to the defendant for his costs of defence, and whereas the
said judgment cannot be \eonvemendy or effectually'] en-
forced by the ordinary process of the last mentioned Court
within the jurisdiction thereof; Thesk are therefore to
SEQUXBE and command you, &c. [the rest as in the lastform^
substUtsting ^^ plaintiff" for defendant],
[Indorsement as above, substituting " costs awarded" for
<< amount recovered by the judgment"].
3. WABKANT TO BB ANNEXED TO THE ABOVE WBITS.
Court of the Vice Warden of the Stannaries.
To Clerk of the County Court of
A. B. >i ^i the request of [the name and address
^' \ of the party prosecuting the trnY], and in pursuance
CD.) of the statute in that case made and provided ; that
108 SCHEDULE OF 70BHS — PLAINTS.
is to say, the statute 18 Vict. c. 82. s. 9. ; I hereby authorize
and require you to cause the writ of execution hereunto
annexed to be executed in due course of law by the high
bailiff of the above County Court, and to certify to me
what shall have been done under the same, and to remit
the amount levied under it, less the costs of making such
levy, according to the practice of the County Court, to the
said [name'], who prosecutes this writ. Dated and sealed
with the seal of the said Court this day of
William Michell, (l. s.)
Registrar of the Court of the said Vice Warden.
(F.)
SUMMONS TO HAVE EXECUTION ON JUDGMENT AFTER THE
DEATH OF A PASTT.
[See Rule, ante. No. 90.]
1. After the death of a plaintiff.
In the Court of the Vice Warden of the Stannaries.
Stannaries of Cornwall [or Devon],
To C. D. [the defendant in the plaint.]
Whereas it is alleged by E. F., of [place of residence"],
that A. B. lately recovered, by the judgment of this Court
against you, the sum of [debt, or damages, and costs], which
judgment remains in force and unsatisfied, and that A. B. has
since died, and that the said E. F. is his executor [or admims-
traior], you are hereby summoned to appear in person, or
by your attorney, before &c., at &c., on &c., [as in a com-
mon summons on a plaint, ante, (B.)], to shew cause why
execution should not issue against you on the said judgment
at the suit of the said E. F. ; and if you do not appear in
SCHEDULE OE EOBMS. 109
pursuance of this summons, the Court will proceed to award
execution in your absence.
Dated ihb daj of
By the Court (l. s.)
Take notice, that if you intend to appear to shew cause
against the Issuing of execution against you, you must give
to the said E. F. at least four clear days' notice of such your
intention before the day of appearance ; otherwise E. F.
will be entitled to have such execution as of course, and you
will not afterwards be permitted to object thereto.
2. After the death of a defendant.
In the Court, &c., [as above"].
To E. F., of [place of residence'].
Whereas it is alleged by A. B., of [place of residence],
that he lately recovered by the judgment of this Court
against C. D., the sum of for his debt, [or doTnages],
and of for his costs of suit, which judgment remains
in force and unsatisfied, and that C. D. has since died, and
that you are his executor, [or administrator] ; you are hereby
summoned to appear in person, or by your attorney, before
&c., at &c., on &c., [as in a common summons, ante, (B.)], to
shew cause why execution should not issue against you on
the said judgment, as such executor, [or administrator], at
the suit of the said A. B. ; and if you do not appear in pur-
suance of this summons, the Court will proceed to award
such execution in your absence.
Dated this day of
By the Court (l. s.)
Take notice, that if you intend to appear to shew cause
110 SCHEDT7LE OF F0BM8 — PLAINTS.
against the issaing of execution against you, you must give
to A. B. at least four clear days* notice of such your inten-
tion before the day of appearance ; otherwise, you will not
be permitted at the trial to dispute the matters alleged by
A. B. as stated in the summons, but only to shew that you
have no property of the late C. D. in your hands, as execu-
tor, applicable to payment of the monies due on the judgment.
[In like manner, a summons may be issued, mutatis mu-
tandis^ and with like notices, by an executor, &c., of the
defendant against the plaintiff, or by a defendant against
an executor of a plaintiff*, on a judgment for costs.]
(G.)
SUMMONS TO HAVE EXECUTION AGAINST AN EXECUTOR
WHEBB ASSETS HAVE COME TO HAND SINCE JUDGlliENT.
[See Ride, ante, No, 97.]
In the Court, &c. [<as above'].
Stannaries of Cornwall [or Devon].
A. B. - plaintiff*,
against
C. D. • executor, defendant.
To C. D. [the defendanf].
Whereas A. B., the plaintiff in this causey lately recovered
by the judgment of this court against you as executor
of C. D., the sum of for hb debt
[or damages'] and costs of suit, to be levied on the goods
of the said C. I)., which should thereafter come to your
hands as such executor to be administered, and it is
alleged by A. B. that the said judgment is still unsatisfied,
and that divers goods of the said CD. have since the judg-
8GHEDULS OF FOBMS. Ill
ment come into jour hands as executor, whereof you maj
satisfy the said judgment, you are hereby summoned to
appear, &c, before, &c., at, &c^ on, &c. [as in summons (B.)]i
to show cause why A. B. should not have execution against
you in pursuance of the said judgment, if it shall seem ex-
pedient to him ; and if you do not appear at the time and
place above named, the Court may proceed to award exe-
cution in your absence.
Dated this day of
By the Court. (l. s.)
Take notice that if you appear to show cause in pursuance
of this summons, you must be prepared to prove either that
the plaintiff*s claim on the judgment has been satisfied, or
that no property of the late C. D. has come into your hands,
as executor, which is applicable to payment of the monies
due thereon.
112
SCHEDULE OF C0T7BT FSB8.
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114 GENE&AL OBMEBB.
II. AS TO SUITS COMMENCED BY WMT.
The following rules and orders shall come into force
on the 20th day of June instant, except as aforesaid
(ante p. 69) ; that is to say : —
WKIT OP SUMMONS AITD SEKVICB THESEOF.
1. Personal actions brought in the Court of the
Vice Warden of the Stannaries (not being actions
prosecuted by plaint) shall be commenced by writ of
summons in the form (A.) contained in the Schedule
to these orders annexed ; and in every such writ, and
copy thereof, the place and county of the residence or
supposed residence of the party defendant, or wherein
the defendant shall be or shall be supposed to be, shall
be mentioned ; and such writ shall be issued by the
secretary of the Vice Warden to the party, who shall
cause it to be sealed by the Eegistrar. Duplicate of
concurrent writs may be issued for convenience of
service.
2. The writ shall contain the names of all the de-
fendants, and shall not contain the name or names of
any defendant or defendants in more actions than one.
It shall bear date on the day on which the saioe shall
be issued, and shall be under the seal of the Court.
3. Every writ of summons shall be indorsed with
the name and place of abode or business of the attor-
ney actually suing out the same, and when he sues
WRIT OF SUMMONS AND SERVICE THEREOF. 115
out the same as agent for another attorney, the name
and place of abode or business of such attorney shall
also be indorsed; and in case no attorney shall be
employed to issue the writ, then it shall be indorsed
with a memorandum expressing that the same has
been sued out by the plaintiff in person, and describ-
ing with precision the place of his residence.
4. Upon the writ and copy thereof served for pay-
ment of a debt, the amount thereof shall be also
indorsed and also the plamtifT's claim for the costs of
the writ, copy, service, and attendance to receive the
debt and costs, and it shall be further stated thatj
upon payment thereof within four days, further pro-
eeedings will be stayed. The costs may, however, be
tioed notwithstanding such payment.
The form of the above indorsement is subjoined in
the Schedule, form (A.)
5. No writ of summons shall be in force for more
than three calendar months from the day of the date
thereof including the day of such date ; but if any
defendant therein named has not been served there-
with, the writ may be renewed at any time before its
expiration for three months from the date of such
renew^ and so from time to time during the currency
of ihe renewed writ, by being resealed and marked
with a memorandum by the Begistrar specifying the
date of renewal, upon delivery to him by the plaintiff
or his attorney of a precipe for that purpose ; and a
writ of summons so renewed shall remain in force and
be available to prevent the operation of any statute
116 GENERAL ORDERS.
whereby the time for the commencement of the action
may be limited, and for all other purposes, from the
date of the issuing of the original writ.
6. The production of a writ of summons purport-
ing to be so resealed and marked shall be sufficient
evidence of its having been so renewed, and of the
commencement of the action as of the first date of
such renewed writ for all purposes.
7. K the plaintiff or his attorney shall omit to
insert in or indorse on any writ or copy thereof any
of the matters required by this Act to be inserted
therein or indorsed thereon, such writ or copy thereof
shall not on that account be held void, but it may be
set aside as irregular, or amended, upon application
to be made to the Vice Warden, or to the Begistrar
when the Court is not sitting ; and such amendment
may be made upon any application to set aside the
writ upon such terms as the Vice Warden or Eegistrar,
as the case may be, shall think fit.
8. In all cases where the defendant resides within
the jurisdiction of the Court, and the claim is for a
debt or liquidated demand in money, with or without
interest, arising upon a contract express or implied,
the plaintiff shall be at liberty to make upon the writ
of summons and copy thereof a special indorsement of
the particulars of his claim in the form (B.) contained
in the Schedule to this Act annexed, or to the like
effect ; and when a writ of summons has been indorsed
in the special form hereinbefore mentioned, the in-
dorsement shall be considered as particulars of
WBIT or SUMMONS AND SEBVICE THEREOF. 117
demand, and no further or other particulars of de-
mand need be delivered, unless ordered by the Vice
Warden or Eegistrar.
9. The writ of summons shall be served, within the
jonsdiction of the Court, in the same manner as a like
writ issuing out of any of the superior Courts, and
the day of service must be indorsed on it within three
days after service, subject to the same consequences
of omission as in those Courts.
10. The service of the writ, wherever it may be
practicable, shall be personal ; but the Vice Warden
may, upon application of the plaintiff, on affidavit, order
that the plaintiff be at liberty to proceed as if
personal service had been effected under the circum-
stances and on the conditions specified in section 17
of the Common Law Procedure Act, 1852.
APPEAKANCE.
11. Appearance, whether in person or by attorney,
shall be by delivering a memorandum in writing,
specifying the name of the cause and the fact of
the appearance, at the Eegistrar's Office.
12. Where several defendants appear by one at-
torney, the name of all shall be inserted in one
appearance, if the attorney was instructed by all at
the time of appearance entered.
13. The defendant must cause his appearance to be
entered within eight days after service of the sum-
118 OBNE&AI. ORDERS.
mons, unless the summons sball name some other or
Uter day for appearance.
14. Every appearance, whether in person or by
attorney, must comply with the Bules, post^ No. 149,
150, and will be subject to the consequences of non-
compliance therein provided.
15. The defendant may appear after the time speci-
fied in the summons or order of the Court, subject
however to the conditions and consequences prescribed
by section 29 of the Common Law Procedure Act, 1852.
IfONAPPEABAKCE ON WRITS SPECIALLY, OR ITOT
SPECIALLY, imDORSED.
16. In case of nonappearance by the defendant,
where the writ of summons is indorsed in the special
form hereinbefore provided, it shall be lawful for the
plaintiff, on filing an affidavit of personal service of the
writ of summons, and a copy of the writ of summons,
at once to sign final judgment, (whereof the formal entry
is under (C.) in the Schedule annexed,), for any sum
not exceeding the sum indorsed on the writ, together
with interest at the rate specified, if any, to the date
of the judgment, and a sum for costs to be taxed in
the ordinary way ; and the plaintiff may, upon such
judgment, issue execution at the expiration of eight
days from the last day for appearance, and not before .
Provided always, that it shall be lawful for the Vice
irONAPFBARANCE ON WRITS. 119
Warden, either before or after final judgment, to let in
tiie defendant to defend upon an application supported
bj asAwSBctory affidavits accounting for the nonappear-
ance, and disclosing a defence upon the merits.
17. In case of such nonappearance, where the writ
of summons is not indorsed in the special form herein-
before provided, it shall and may be lawM for the
plaintiff, on filing an affidavit of personal service of the
wilt of summons, or an order for leave to proceed as
if personal service had been effected, and a copy of the
writ of summons, to file a declaration indorsed with a
aotice to plead in ten days, and to sign judgment by
de&ult at the* expiration of the said time to plead ; and
in the event of no plea being delivered, where the cause
of action mentioned in the declaration is for any of the
claims which might have been inserted in the special
indorsement on the writ of summons hereinbefore
provided, and the amount claimed is indorsed on the
writ of summons, the judgment shall be final, and ex-
ecution may issue for an amount not exceeding the
amount indorsed on the writ of summons, with interest
at the rate specified, if any, and costs to be taxed in
the ordinary way : Provided always, that in such case
the plaintiff shall not be entitled to more costs than if
he had made such special indorsement, and signed
judgment upon nonappearance.
18. In any action brought against two or more
defendants, where the writ of summons is indorsed in
the special form hereinbefore provided, if one or some
only of such defendants shall appear, it shall be lawful
120 GENERAL ORDERS — WRITS.
for the plaintifp to sign judgment against such de-
fendants as shall not have appeared, and, before
declaration against the others, to issue execution
thereupon, in which case he shall be taken to have
abandoned his action against the defendant or
defendants who shall have appeared : — or the plaintiff
may declare against the defendant or defendants who
shall have appeared, stating, by way of suggestion,
the judgment obtained against the other defendant
who shall not have appeared; in which case the
judgment so obtained against a defendant who shall
not have appeared shall operate in like manner as a
judgment by default obtained in a superior Court
before the passing of the Common Law ftocedure
Act, 1852, against one or more of several defendants
in an action of debt.
JOINDER or PARTIES. — PLEA IN ABATEMENT.
19. It shall be lawful for the Vice Warden or Ee-
gistrar, at any time before the trial of any cause, to
order that any person not joined as plaintiff shall be
so joined; or that any person originally joined as
plaintiff shall be struck out from such cause, if it
shall appear to him that injustice will not be done by
such amendment, and that the person so to be added
consent, either in person or by writing, under his hand,
to be so joined ; or that the person so to be struck out
was originally introduced without his consent, or that
such person consent in like manner to be so struck out.
JOIKDEB 07 PARTIES. 121
20. Such amendment shall be made upon such
terms as to the amendment of the pleadings (if any)
postponement of the trial, and otherwise, as the Vice
Warden or Eegistrar (as the case may be) shall think
proper; and when any such amendment shall have
been made, the liability of any person so added as co-
plaintiff shall, subject to any terms so imposed, be
the same as if he had been originally joined in such
cause.
21. In case it shall appear at the trial of any action
that there has been a misjoinder of plaintiffs, or
that some person, not joined as plaintiff, ouglit
to have been so joined, and the defendant shall not,
at or before the time of pleading, have given notice in
writing that he objects to such nonjoinder, specifying
therein the name of such pe^on, such misjoinder or
nonjoinder may be amended, as a variance, at the trial.
in like manner as to the mode of amendment, and pro-
ceedings consequent thereon, (or as near thereto as tlie
circumstances of the case will admit,) as in the case of
amendments of variances under the act 3 & 4 Wm.
4. c. 42., if it shall appear to the Court that such mis-
joinder or nonjoinder was not for the purpose of ob-
taining an undue advantage, and that injustice will not
be done by such amendment, and that the person so to
be added consent, either in person or by writing under
his hand, to be so joined, or that the person to be so
struck out was originally introduced without his con-
sent, or that such person consent in like manner to so be
struck out; and the amendment shall be made upon such
o
122 OEITEEAL OSDEBS — ^WEITS.
terms as the Court shall think proper ; and when anj
such amendment shall have been made, the liability of
any person who shall have been so added as co-plaintiff
shall, subject to any terms imposed as aforesaid, be the
same as if such person had been originally joined in
the action.
22. In case of such notice being given, or of any plea
in abatement of nonjoinder of a person as co-plaintiff,
the plaintiff shall be at liberty, without any order, to
amend the writ and other proceedings before plea, by
adding the name of the person named in such notice or
plea in abatement, and to proceed in the action with-
out any further appearance on payment of the costs
of, and occasioned by, such amendment only ; and in
such case the defendant shall be at liberty to plead de
novo.
23. It shall be lawful for the Vice Warden, or Eegis-
trar, in the case of the joinder of too many defendants
in any action on contract, at any time before the
trial to order that the name of one or more of such
defendants be struck out, if it shall appear to him that
injustice will not be done by such amendment, and
the amendment shaU be made upon such terms as he
shall think proper ; and in case it shall appear at the
trial of any such action that there has been a misjoin-
der of defendants, such misjoinder may be amended, as
a variance, at the trial in like manner as the mis-
joinder of plaintiffs, and upon such terms as the Vice
Warden or Eegistrar shall think proper.
24. In any action on contract, where the nonjoinder
JOINDE& OF FABTIES. 123
of any person within the jurisdiction as a co-defendant
has been pleaded in abatement, the plaintiff shall be at
liberty, without any order, to amend the writ and the
declaration by adding the name of the person named in
the plea in abatement as joint contractor, and to serve
the amended writ upon the person so named in the plea,
and to proceed against the original defendant, and
the person so named in such plea : Provided that the
date of such amendment shall, as between the person
or persons so named in such plea in abatement and
the plaintiff, be considered for all purposes as the
commencement of the action.
25. In all cases after such plea in abatement and
amendment, if it shall appear upon the trial of the
action that the person so named in such plea was
jointly liable with the original defendant, the original
defendant shall be entitled as against the plaintiff to
the costs of such plea and amendment ; but if at such
trial it shall appear that the original defendant or any
of the original defendants is or are liable, but that
one or more of the persons named in such plea in
abatement is or are not liable on the contract, the
plaintiff shall nevertheless be entitled to judgment
against the defendant who shall appear to be liable ;
and every defendant who is not so liable shall have
judgment, and shall be entitled to his costs as
against the plaintiff, who shall be allowed the same,
together with the costs of the plea in abatement and
amendment, as costs in the cause against the original
defendant who shall have so pleaded in abatement:
g2
124 GEinBBAL OSDEBS — WBITS.
Provided that any such defendant who shall have so
pleaded in abatement shall be at liberty on the trial
to adduce evidence of the liability of the defendants
named by him in such plea in abatement.
JOINDER OF CAUSES OP ACTION.
26. In any action brought by a man and his wife
for an injury done to the wife, in respect of which
she is necessarily joined as co-plaintiff, it shall be
lawful for the husband to add thereto claims in his
own right, and separate actions brought in respect of
such claims may be consolidated, if the Vice "Warden
shall think fit: Provided that in the case of the
death of either plaintiff, such suit, so far only as
relates to the causes of action, if any, which do not
survive, shall abate.
27. Causes of action, of whatever kind, provided
they be by and against the same parties and in the
same rights, may be joined in the same suit ; but the
Vice Warden shall have power to prevent the trial
of such causes together, if such trial would be inex-
pedient ; and in such case the Vice Warden may
order separate trials to be had.
28. The above provision for joinder of causes shall
not extend to ejectment, or to the joinder of causes
arising in different Stannaries and triable only by juries
summoned from different counties.
PAKTIBS Uin)BK AGE. 126
PARTIES UNDER AGE.
29. Infant plaintiffs must sue by next friend,
and defend by guardian, and the next friend or
guardian may be appointed in the manner provided
in the general rules of the Court in suits by plaint,
No. 20 and 21.
ACTIONS BY PAUPERS.
30. No person shall be admitted to sue as a pauper,
unless a statement of the facts of his case with an
affidavit of the party, or his attorney, that it is, to the
best of his knowledge and belief, a true statement, be
laid before the Eegistrar to whom the application is
to be made ; and if the application be granted, then
no Court fees or officer's fees shall be payable by the
party, nor any fees allowed to his attorney or advocate.
In other respects the practice as to pauper plaintiffs
shall be the same as in the superior courts, as nearly
as may be.
SECURITY FOR COSTS.
31. Security for costs, if required, must be applied
for within a reasonable time after the facts which
warrant such application shall have come to the
plaintiff's knowledge.
DECLARATION AND PLEADINGS.
32. The declaration may be in the form in the
126 GE^EEAL OSDEBS — WRITS.
Schedule of Forms annexed under (D.) It must show
that the plaintiff or defendant, or both, are miners,
and that the cause of action is one whereof the Court
has cognizance, and must be entitled of the day and
year when pleaded ; and, generally, all dates, figures,
and sums, both in the declaration and pleadings, are
to be truly stated, so far as they are known or can be
ascertained.
33. The declaration is to be filed at the Eegistrar's
OflGlce, and notice thereof given to the defendant within
ten days after appearance.
34. K the plaintiff fails to declare within ten days
after the defendant's appearance, the defendant may
call upon him by written notice to declare within four
days, otherwise judgment ; and if he shall not declare
within such four days, judgment of non pros may
be signed by the defendant. The plaintiff shall be
deemed out of Court unless he declares within six
months after the writ of summons is returnable.
35. K the defendant shall desire to object to the
jurisdiction of the Court by demurrer or plea, he must
file his demurrer or plea within ten days after notice
of declaration. [See 18 Vict. c. 32. sect. 18.]
36. Pleas in abatement must be pleaded and filed,
and notice thereof given to the plaintiff, within four
days after filing and notice of declaration ; and both
pleas in abatement and pleas to the jurisdiction must
be verified and supported by affidavit, as required in
the superior courts ; and may be pleaded by attorney.
DEOLABATION AND FLEADIirGS. 127
37. Pleas in bar and demurrers must be pleaded
within .ten days after filing and notice of declaration,
unless the time be extended by the Vice Warden
or the Begistrar ; and a notice to plead within ten
days, otherwise judgment, is to be indorsed upon the
declaration.
38. K the defendant pleads or demurs to the
jurisdiction, he may also plead in bar within the
time limited herein for that purpose, and if he has
any matter of defence on which he intends to rely
hetides the supposed defect of jurisdiction, he mttst
so plead it, otherwise judgment for the plaintiff on the
plea or demurrer to the jurisdiction will be to
" recover," and not to " answer further."
39. The replication and each subsequent pleading
must be pleaded and filed within eight days after filing
the plea or preceding pleading.
40. The filing of any plea, (except a plea in abate-
ment,) or of any subsequent pleading in the office of
the Registrar, shall be sufficient notice thereof to the
opposite party ; and no other notice or rule to plead,
OP demand of a plea or other pleading, shall be re-
quired: — and if either party fail in filing his plea or
other pleadings within the times above respectively
prescribed, judgment of non pros or for want of a plea
(as the case may be) may be signed, unless further
time be allowed by consent or by order.
41. 'No pleading shall be deemed insufficient for
want of form or for any defect which, before the Com-
mon Law Procedure Act, 1852, could only be objected
to by special demurrer in the superior courts.
128 eENEBAL OEDEBS — WEITS.
42. If any pleading be so framed as to prejudice,
embarrass, or delay the fair trial of the action, the
opposite party may apply to the Court or to the Eegis-
trar when the Court is not sitting, to strike out or
amend such pleading, who shall make such order
respecting the same, and the costs of the application,
as he shall see fit.
43. Any plea which does not state whether the
defence therein set up arose before or after action
shall be deemed to be a plea of matter arising before
action.
44. The defendant may either traverse generally
such of the facts in the declaration as might have been
separately traversed, or may traverse separately alle-
gations which might have been included in a general
traverse ; and may deny the whole or part of a replica-
tion or other subsequent pleading.
45. The plaintiff may deny the whole of a plea or
subsequent pleading generally, or deny one or more
allegations in it.
46. Equitable grounds of defence or reply may be
pleaded under the circumstances and conditions
specified in sects. 83, 85, 86, of the Common Law
Procedure Act, 1854, and the Vice Warden may exer-
cise the powers thereby conferred on the Court or
Judge.
47. The rules of pleading as to profert or setting
forth of documents in any pleading shall be the same
as in the superior Courts.
48. Pleas of payment and set-ofi*, and other plead-
BSCLASATION AKD PLEADINGS. 129
ings capable of being taken distributively, shall be s5
taken, and upon issue thereon a verdict may pass lor
the defendant in respect of so much of the cause of
action proved as shall be sufficiently answered by such
plea, and for the plaintiff as to so much as shaU not
be answered.
49. Either party may, icithout leave of the Court,
plead, and also demur to the same pleading at the
same time ; but the Vice Warden may, in his discre-
tion, put the party to his election as to whether lie will
abide by his plea or his demurrer, and strike out the
one or the other accordingly, and may also direct how
and in what order such issues of law and fact shall be
disposed of.
50. Either the plaintiff or the defendant may, u^ith-
out leave of the Court, plead several and distinct
matters in answer to the whole, or to the same part of
a declaration or pleading of the opposite party ; but
in such case, if the several matters of defence, of
replication, or otherwise, shall exceed three in number
(exclusive of a plea to the jurisdiction), the party
shall, with his pleadings, file an affidavit by himself
or his attorney, that " he has, as the deponent verily
believes, just ground for pleading the several matters
contained in his pleadings ; and that he has not, in or
by such pleadings, denied any thing which he knows
to be true in substance, or alleged any thing which he
knows or believes to be untrue in substance."
51. The above rule is subject to the Eule No. 42,
supra, and to the right of applying to the Eegistrar
G 3
130 GEKEBAL OBDEBS — WBITS.
under sect. 19 of 18 Yict. c. 32., on the ground of
uncertainty, obscurity, or prolixity, or of applying to
the Vice Warden or Eegistrar to strike out, with costs,
pleadings manifestly vexatious, or inconsistent, or
unnecessary to a decision on the real merits and justice
of the case* It is subject also to the rule next following.
52. Several counts on the same cause of action, and
several pleas or subsequent pleadings on the same
ground of answer or defence shall not be allowed, if
promptly objected to by application to the Vice
"Warden or Registrar, unless it appear to him necessary
for the ends of justice to allow them, or any of them.
If any be struck out or amended on such application,
the costs and conditions of such striking out or
amendment shall be in his discretion.
53. K it shall appear on the trial that such counts
or pleadings have been unnecessarily multiplied, the
Vice "Warden may give such directions as to the costs
thereof, or occasioned thereby, as he shall think fit.
54. Either party may join issue on a plea, or sub-
. sequent pleading, in the form prescribed by sect. 79
of the Common Law Procedure Act, 1852, and such
form of joinder shall be deemed to be a denial of
the substance of the plea or other pleading and an
issue thereon ; and where the plaintiff's pleading is in
denial of some pleading of the defendant, the plaintiff
may add a joinder of issue for the defendant.
55. In cases not herein specified or provided for, the
language, forms, and rules of pleading shall be the same,
mutatis mutandis^ as in the superior Courts of common
BECLABATION AJSTD PLEADHTOS. 131
law, 80 for as they are not inconsistent with the present
rules, or with the limited jurisdiction and the consti-
tution of the Court, or with any lawful cuatoiud in
force within the Stannaries.
Examples of the ordinary forms of pleading wiU be
found in the Schedule annexed, (D.;
PABTICULAES OF DEMAND OB OE SET-OFF.
56. With every declaration or plea of set-off in q,
general form, the plaintiff or defendant shall also file
full particulars of his demand or claim, or such a
statement thereof as can be comprised within three
folios. If such p»ticulars be omitted, the Vice War-
den or Registrar may order delivery thereof, and no
costs shall then be allowed to the party delivering
them for the particulars or for the summons; and
such particulars, when filed with the declaration or
plea in the office, may be produced and read at the
trial without further proof of them.
57. Particulars may be obtained by a defendant by
summons and order of the Registrar before appear-
ance, if he shall think fit to order it.* Where the writ
is specially indorsed under order No. 8, supra, no
further particulars need be filed or delivered.
58. The plaintiff may give credit to the defendant
for a payment or a set-off in his particulars, and in such
case the defendant need not plead the specific pa3nnent
or the set-off for which credit is given.
132 eSKEBAL OBDEBS— WBIT8.
PATMEIfT INTO COTTBT.
59. It shall be lawful for the defendant in all actions
on contract, or for injury to real or personal property,
without leave of the Court, (or, by leave of the Vice
Warden upon such terms as he may think fit, for one
or more of several defendants) to pay into Court a sum
of money by way of compensation or amends. Such
payment is to be pleaded, as near as may be, in the
following form, mutatis muta/ndis ;
" The defendant by his attorney [or
" in person, ifc.'] [if pleaded to paH say, as to
" £ parcel of the money claimed], brings
" into Court the sum of £ and says that *
" the said sum is enough to satisfy the claim of
" the .plaintiif in respect of the matter herein
" pleaded to."
60. The money shall be paid to the Eegistrar of the
Court, who shall give a receipt for the amount in the
margin of the plea, and the said sum shall be paid out
to the plaintiff, or to his attorney upon a written
authority from the plaintiff, on demand, and no affidavit
to verify his signature to the authority shall be
necessary, unless specially required by the Eegistrar.
61. The plaintiff, after the delivery of a plea of pay-
ment into Court, may reply by accepting the sum so
paid in fiill satisfaction of the cause of action in respect
of which it has been paid in, and in that case may tax
PAYMENT INTO COUET. 133
tis costs of suit, and, in case of nonpayment thereof
within forty-eight hours, sign judgment for his costs
so taxed : — Or the plaintiff may reply that the sum paid
is not enough to satisfy his claim in respect of the
matter to which the plea is pleaded ; and in the event
of an issue thereon being found for the defendant, the
defendant shall be entitled to judgment and his costs
of suit.
62. The practice as to costs upon payment of money
into Court shall be the same, in other respects, as in
the superior courts.
ADMISSION or DOCUMENTS.
63. Either party may call on the other by notice in
the form (E.) in the Schedule, to admit a document,
saving just exceptions ; and in case of refusal or neglect
to admit, the costs of proof shall be paid by the party
refusing, whatever be the result of the cause, unless
the Vice Warden shall certify that the refusal was
reasonable; and no costs of proof shall be allowed
unless such notice be given, unless the omission be, in
the opinion of the Eegistrar, a saving of expense.
64. Admissions made in pursuance of notice to
admit, and also the service, and time of service, and
a copy of any notice to produce in respect of which
the notice to admit was giv^n, may be proved by the
affidavit of the attorney in the cause or his clerk, as
in the superior Couirts.
134 GENERAL OBDEBS — WBITS.
JUDGMENT BY DEFAITLT.
65. In actions where the plaintiff seeks to recover
a debt or liquidated demand in money, judgment by
default shall be final.
66. In actions in which it shall appear to the Vice
Warden that the amount of damages sought to be
recovered by the plaintiff is substantially a matter of
calculation, it shall not be necessary to proceed to an
inquiry by a jury, but the Vice "Warden may direct
that the amount, for which final judgment is to be
signed, shall be ascertained by the Eegistrar ; and the
attendance of witnesses and the production of docu-
ments before the Eegistrar may be compelled by sub-
poena as upon an inquiry before a jury ; and it shall
be lawful for him to adjourn the inquiry from time to
time, as occasion may require ; and the Eegistrar shall
indorse upon the rule for referring the amount of
damages to him the amount found by him, and shall
deliver the rule, with such indorsement, to the plaintiff;
and such and the like proceedings may thereupon be
had as to taxation of costs, signing judgment, and
otherwise, as upon the finding of a jury upon an inquiry.
67. In aU actions where the plaintiff recovers a sum
of money, the amount to which he is entitled may be
awarded to him by the judgment generally, without
any distinction being therein made as to whether such
sum is recovered by way of a debt or of damages.
FOTIOE OP TEIAL. 135
IffOTICE OP TEIAL, &C.
6S, Eight days' notice of trial or inquiry before the
first day of sittings appointed for hearing or trying
oommon law causes shall be given, and shall be sufficient
in all cases, unless otherwise ordered by the Court : and
the plaintiff shall, at the time of giving such notice,
also notify to the secretary of the Vice Warden his
intention to try the cause at the next sittings. This
rule applies as well to issues out of equity as to
actions.
69. A countermand of notice of trial or inquiry shall
be given four days before the same day mentioned in
the notice of trial, unless short notice has been given,
and then two days' countermand shall be sufficient,
unless otherwise ordered.
70. 'No formal issue need be made up or delivered
before trial, except in the case hereinafter mentioned,
nor any record in the nature of a Nisi Prius record
drawn, engrossed, or entered, except in the case con-
templated by sect. 8 of the Act 6 & 7 Wm. 4. c. 106. ;
but the original proceedings, filed in the office down to
issue joined, shall be a sufficient issue and record for
the purposes of trial.
71. After notice of trial, the cause must be set down
for trial at the Eegistrar's Office during office hours
on the day before the first day of sittings, and a copy
of the pleadings must, at the same time, be delivered
to the Secretary by the plaintiff, otherwise it cannot
be brought on for trial without an order of the Vice
Warden.
136 GENEEAL OEDEES — WfilTS.
COSTS OP THE DAY.
72. A rule for costs of the day for not proceeding
to trial or inquiry pursuant to notice, or not counter-
manding notice in time, may be obtained, as of course,
from the Registrar, without motion, upon an affidavit
in the usual form, and shall contain an order to pay
the taxed costs to the defendant.
COMPELLING THE PLAINTIPP TO PBOCEED TO TRIAL.
73. Where any issue is or, shall be, joined in any
cause, and the plaintiff has neglected or shall neglect
to bring such issue on to be tried at the next prac-
ticable sittings after issue joined, whether the plaintiff
shall in the meantime have given notice of trial or
not, the defendant may give twenty days' notice to
the plaintiff to bring the issue on to be tried at
the sittings next after the expiration of the notice ;
and if the plaintiff afterwards neglects to give notice
of trial for such last mentioned sittings or to pro-
ceed to trial in pursuance of the notice so given
by the defendant, the defendant may sign judgment
for his costs ; provided that the Vice Warden shall
have power to extend the time for proceeding to trial,
with or without terms.
74. No trial by proviso shall be allowed.
ORDER FOR INSPECTION OF PROPERTY, OR DOCUMENTS.
75. Either party shall be at liberty to apply to
PSAOTICE ON TBIALS, ETC. 137
the Vice Warden for an order for the inspection
by the jury, or by himself, or by his witnesses, of
any real or personal property the inspection of which
may be material to the proper determination of the
question in dispute ; and it shall be lawful for the Vice
"Warden, if he think fit, to make such order upon such
terms as to costs and otherwise as he may direct.
In like manner, inspection of documents in the pos-
session, power, or control of the opposite party may be
ordered and enforced by the Vice Warden, upon the
application of either party, under the same circum-
stances which would entitle him to inspection in
actions in the superior Courts of common law ; and a
discovery thereof may be obtained as upon a like
application to those Courts, or a judge thereof, imder
the Common Law Procedure Act, 1854.
ACTIONS ON LOST INSTRUMENTS.
76. In actions on negotiable instruments, the Vice
Warden may order that the loss of such instrument
shall not be set up, provided an indemnity be given
to the satisfaction of the Vice Warden or of the Re-
gistrar against the claims of any other person thereon.
COURSE OP PRACTICE AND EVIDENCE ON TRIALS
AND INQUIRIES.
77. Upon the trial of any cause the addresses to
the jury shall be regulated as follows, unless the
Court shall otherwise direct : — The party who begins,
138 GEKEBAL OBDEBS — WBITS.
his counsel or advocate, shall be allowed, in the event
of his opponent not announcing, at the close of the
case of the party who begins, his intention to adduce
evidence, to address the jury a second time at the
close of such case for the purpose of summing up
the evidence; and the party on the other side, or
his counsel, or advocate, shall be allowed to open the
case, and also to sum up the evidence (if any) ; and
the right to reply shall be the same as at present.
78. It shall be lawful for the Court, at the trial
of any cause, where the Judge may deem it right for
the purposes of justice, to order an adjournment for
such time, and subject to such terms and conditions
iis to costs, and otherwise, as he may think fit.
79. K any person called as a witness, or required
or desiring to make an affidavit or deposition, shall
refuse or be imwilling from alleged consciencious
motives to be sworn, it shall be lawful for the Court,
or officer, or person qualified to take affidavits or
depositions, upon being satisfied of the sincerity of
such objection, to permit such person, instead of being
sworn, to make his or her solenm affirmation or decla-
ration in the words following ; videlicet,
* I A.B, do solemnly, sincerely, and truly affirm and
' declare, That the taking of any oath is, according
* to my religious belief, unlawful ; and I do also
* solemnly, sincerely, and truly affirm and declare,
Which solemn affirmation and declaration shall be of
the same force and effect as if such person had taken
an oath in the usual form.
P&ACTIOE Oir TBIALS, ETC. 139
80. A party producing a witness shall not be al-
lowed to impeach his credit bj general evidence of
bad character, but he may, in case the witness shall,
in the opinion of the Judge, prove adverse, contradict
him by other evidence, or, by leave of the Judge,
prove that he has made at other times a statement
inconsistent with his present testimony; but before
such last mentioned proof can be given, the circum-
stances of the supposed statement, sufficient to desig-
nate the particular occasion, must be mentioned to
the witness, and he must be asked whether or not he
'has made such statement.
81. If a witness, upon cross-examination as to a
former statement made by him relative to the subject
matter of the cause and inconsistent with his present
testimony, does not distinctly admit that he has made
such statement, proof may be given that he did in
feet make it ; but before such proof can be given,
the circumstances of the supposed statement, suffi-
cient to designate the particular occasion, must be
mentioned to the witness, and he must be asked
whether or not he has made such statement.
82. A witness may be cross-examined as to previous
statements made by him in writing, or reduced into
writing, relative to the subject-matter of the cause,
without such writing being shewn to him ; but if it is
intended to contradict such witness by the writing,
his attention must, before such contradictory, proof
can be given, be called to those parts of the writing
which are to be used for the purpose of so contradict-
14fO GXNEBAL OBDEBS — ^WBITS.
ing him : provided always, that it shall be competent
for the Judge, at any time during the trial, to require
the production of the writing for his inspection, and
he may thereupon make such use of it for the purposes
of the trial as he shall think fit.
88. A witness in any cause may be questioned as.
to whether he has been convicted of any felony or
misdemeanor, and, upon being so questioned, if he
either denies the fact, or refuses to answer, it shall be
lawful for the opposite party to prove such conviction ;
and a certificate containing the substance and efiect
only (omitting the formal part) of the indictment and
conviction for such ofience, purporting to be signed
by the clerk of the Court, or other officer having the
custody of the records of the Court where the ofiender
was convicted, or by the deputy of such clerk or officer
(for which certificate a fee of five shillings and no
more shall be demanded or taken), shall, upon proof of
the identity of the person, be sufficient evidence of the
conviction, without proof of the signature or official
character of the person appearing to have signed the
same.
84. It shall not be necessary to prove by the attest-
ing witness any instrument to the validity of which
attestation is not requisite ; and such instrument may
be proved by admission, or otherwise, as if there had
been no attesting witness thereto.
85. 'Comparison of a disputed writing with any
writing proved to the satisfaction of the Judge to be
genuine shall be permitted to be made by witnesses ;
PBAOTIOE Oy TBIALS, ETC. 141
and such writings, and the evidence of witnesses re-
specting the same, may be submitted to the Court
and jury as evidence of the genuineness, or otherwise,
of the writing in dispute.
86. Upon the production of any document as evi-
dence at the trial of any cause, it shall be the duty of
the officer of the Court, whose duty it is to read such
document, to call the attention of the Judge to any
omission or insufficiency of the stamp ; and the docu-
ment, if unstamped, or not sufficiently stamped, shall
not be received in evidence until the whole or (as the
case may be) the deficiency of the stamp duty, and
the penalty required by statute, together with the
additional penalty of one pound, shall have been paid ;
and such officer of the Court shall, upon payment to
him of the whole, or (as the case may be) of the de-
ficiency, of the stamp duty payable upon or in respect
of such document, and of the penalty required by
statute, and of the additional penalty of one pound,
give a receipt for the amount of the duty or deficiency
which the Judge shall determine to be payable, and
also of the penalty, and thereupon such document
shall be admissible in evidence, saving all just excep-
tions on other grounds. And all the provisions of
the Act 17 & 18 Vict. c. 125. s. 29 and 30 shall be
observed by the officer who shall receive such duty
and penalty : provided always, that this rule shall not
extend to any document which cannot be stamped after
the execution thereof on payment of the duty and a
penalty.
142 OENEBAL OBDEBS — WBITS.
87. No new trial shall be granted by reason of the
ruling of the Judge that the stamp upon any document
is sufficient, or that the document does not require a
stamp.
EIAMIITATIGN OP WITNESSES OUT OF eOTTHT.
88. The course and practice of examination of wit-
nesses vivd voce out of Court by order of the Vice
Warden shall be the same as under orders No. 49,
50 and 51 on the Equity side of the Court ; and the
practice as to the admissibility of such examinations
shall be the same, as nearly as may be, a& in the case
of examinations taken by order of the superior Courts
under the authority of the act 1 Wm. 4. c. 22.
TBIAL or ISSUE BY THE COUBT BY CONSENT.
89. The parties to any cause may, by consent in
writing, signed by them or their attorneys, as the case
may be, leave the decision of any issue of fact to the
Court, provided that the Yice Warden, upon a motion,
or a summons, shall, in his discretion, think fit to
allow such trial ; and such issue of fact may thereupon
be tried and determined, and damages assessed by the
Vice Warden, where necessary, in open Court ; and
the verdict of the Vice Warden shall be of the same
effect as the verdict of a jury, save that it shaU not
be questioned upon the ground of being against the
TBIAL or ISSUE BY CONSENT. 143
weight of evidence ; and the proceedings upon and
after such trial, as to the power of the Court, the
evidence, and otherwise, shall be the same as in the
case of trial by jury.
90. If upon the trial of any issue of fact by the
Vice Warden under this order it shall appear to him
that the questions arising thereon involve matter of
account which cannot conveniently be tried before
him, it shall be lawful for him, at his discretion, to
order that such matter of account be referred to the
Begistrar of the Court, upon such terms as to costs
and otherwise as he shall think reasonable; and
the proceedings before the Eegistrar shall be the
same as in case of references to him in causes on the
Equity side of the Court, and judgment shall be entered
up in pursuance of his certificate when confirmed;
and it shall be competent for the Yice Warden to
proceed to try and dispose of any other matters in
question, not referred, in like manner as if no reference
had been made.
MOTION FOB NEW TBIALS, &C.
91. A motion for a new trial, or to enter a verdict
or nonsuit, or in arrest of judgment, or for judgment
nan obstante veredicto, must be made on or before the
third day after the day of trial, exclusive of that day,
unless the Court shall, on application within that timo,
permit the motion to be postponed; or shall, by a
general order on or before the first day of sittings.
144 GENEEAL OBDEBS — ^WBITS.
direct that such motions shall, during those sittings,
be made on some earlier or later day after the day of
trial.
92. On motion to arrest judgment, or for judgment
non obstante, Sfc, by reason of the nonaverment of
some alleged material fact or allegation, or other cause,
the party whose pleading is defective may, by leave of
the Court, suggest the existence of the omitted fact
or matter which would remedy the defect ; and such
suggestion, if not admitted, may be pleaded to within
four days after notice thereof, and, on issue joined,
may be tried as in an ordinary action ; and, if admitted
or found true, judgment shall be given as if the fact
or allegation had been originally stated and proved,
or admitted on the trial, together with the costs of,
and occasioned by, the suggestion. If found untrue,
the opposite party shall be entitled to such costs in
addition to any other costs.
93. The costs in cases of new trial, nonsuit, arrest
of judgment, and judgment non obstante, Sfc, shall be
adjudged and dealt with according to the practice of
the superior Courts.
94. A new trial may, if the Court think fit, be
granted on condition that the party obtaining such
new trial do consent to proceed to such trial on a sub-
sequent day, to be named by the Vice "Warden, during
the same sittings at which the first trial took place, or
at which the rule for a new trial was made absolute,
although the jurors on the new trial may not be among
the jurors summoned one week before the then sit-
tings according to the ordinary course of practice;
ICOTIOK rOB KEW TBIALS, &C. 145
but in such case, the jurors shall be persons duly qua-
lified to serre as jurors in the Vice Warden's Court,
and shall be subject to the right of challenge and the
other provisions for completing the requisite number
of jurors contained in sect. 34 of the Act 6 & 7 Wm. 4.
c. 106.
JUDGMENT.
95. No rule for judgment shall be necessary.
96. Judgments, interlocutory or final, are to be en-
tered or recorded as of the day of the month and year
when signed, and shall relate to that day only, unless
a judgment be entered nunc pro tunc by order of the
Court; and judgment shall be deemed to be signed and
entered up, when a minute or note thereof shall have
been made in the Eegistrar's book, with the amount
of taxed costs added thereto, and signed by the Eegis-
trar ; and interest will run on the amount of the judg-
ment debt from the date of such signing.
97. Whenever it may become necessary to make up
a formal record of a judgment, it shall be written or
engrossed on paper, and shall set forth the pleadings
and proceedings in the Court down to the judgment,
inclusive. The form of a judgment for the plaintiff*,
after a verdict by a jury or by the judge, uvdll be found
in the Schedule annexed, by way of example, under (F).
As to distinguishing between the debt and damages
^n awarding a sum of money by the judgment, see
ante, Eule No. 67.
H
146 GENEBAL OSDERS — ^WBITS.
EXECUTION.
98. Execution shall be by writ of fieri facias or
of capias ad satisfaciendum within the Stannaries, and
(if the proceedings be for the recovery of a sum not
exceeding 501.) by writ of fieri facias to be executed
by the high bailiff of a County Court out of the
jurisdiction ; and the writs for execution within the
Stannaries may be sued out and issued without
special leave of the Court, in cases wherein they may
be lawfully so sued out and issued on a like judgment
in any inferior Court of record, save only that a capias
shall not issue before a return of nulla lona, or of an
insufficient levy, to a writ of fieri facias. Such
writs may be in the Forms under (G.) in the Schedule
annexed.
99. When the debt or damages recovered, or
sought to be recovered, shall exceed 50Z., and the
judgment cannot be enforced within the Stannaries,
the parties will be at liberty, without special leave of
the Court, to proceed, as they may be advised, for
execution out of the jurisdiction under sect. 9 of the
Act, 18 Vict. c. 32.
100. A writ of execution to be executed by the
high bailiff of a County Court is not to be issued
except on satisfoctory proof, by affidavit or otherwise,
to the Eegistrar that the judgment cannot be con-
veniently or effectually enforced by the ordinary pro-
cess of the Court within the jurisdiction thereof.
101. A plaintiff or defendant, having obtained a
EXECUTION'. 1 47
verdict, shall be entitled to sue out execution in four-
teen days, unless the Court shall order execution
to issue at an earlier or later period, with or without
terms.
102. The Court shall luiye power, if it see fit so
to do, upon the application of the plaintiff in niiy
action for the detention of any chattel, to order that
execution shall issue for the return of the chattel
detained, without giving the defendant the option
of retaining such chattel upon paying the value
assessed, and that, if the said chattel cannot be found,
and unless the Vice Warden should otherwise order,
the bailiff shall distrain the defendant by all his goods
and chattels in the Stannaries, till the defendant
render such chattel ; or, at the option of the plaintiff,
that he cause to be made of the defendant's goods
the assessed value of such chattel ; and for this pur-
pose the writs of execution used, in such cases, in
the superior Courts may be adopted, mutatis mutandus^
in this Court ; provided that the plaintiff shall, either
by the same or a separate writ of execution, be en-
titled to have made of the defendant's goods the
damages, costs, and interest in such action.
103. Except where it is otherwise provided by
these rules, it shall not be necessary to make up any
formal record of the judgment before issuing execu-
tion, but the costs must be taxed, the judgment
signed, and a praecipe for the writ must be filed with
the Eegistrar before it is issued.
104f. Writs of execution shall bear date on the day
H 2
148 GHHEEAL OEDEES— WBIT8.
of issuing, and be sealed with the seal of the Court,
and indorsed in like manner as in the superior Courts
of common law. They shall be directed to the bailiff
or bailiffs of the Stannaries, and, in the case of a
ca, sa,, also to the keeper of the prison of the Court,
and be made returnable immediately.
105. In every case of execution, executed within
the Stannaries, the party entitled to execution may
levy the fees and expenses of the execution, over
and above the sum recovered.
106. A writ of execution issued hereafter, if
unexecuted, shall not remain in force for more than
one year from the date of such writ, unless renewed ;
and such writ may, at any time before its expiration,
be renewed by the party issuing it for one year
from the date of such renewal, and so on from time
to time during the continuance of the renewed writ,
the same being sealed and marked by the Eegistrar
with the date of the renewal ; and a writ of execu-
tion so renewed shall have effect, and be entitled
to priority, according to the time of the original
delivery thereof.
107. A written order under the hand of the at-
torney in the cause, by whom any writ of capias
ad satufadendiim shall have been issued, shall justify
the gaoler, bailiff, or person in whose custody the
party may be under such writ, in discharging such
party, unless the party for whom such attorney
professes to act shall have given written notice to
the contrary t« such gaoler or other person in whos(3
EXSCUTIO^r. 149
custody the opposite party may be ; but such dis-
charge shall not be a satisfaction of the debt unless
made by the authority of the creditor ; and nothing
herein contained shall justify any attorney in giving
such order for discharge without the consent of his
client.
108. A person already in the prison of the Court
may be charged in execution by an order of the Vice
Warden made upon affidavit that judgment has been
signed and is not satisfied ; and the service of such
order upon the keeper of the prison for time being
shall have the effect of a detainer.
109. The bailiffs of the Stannaries shall be com-
pellable to return writs by orders of the Court, issued
on application either to the Vice "Warden, or to the
Begistrar when the Court is not sitting ; or for
default of obedience to such order they will be liable
to attachment, and also to summary proceedings imdcr
the Act, 7 Vict. c. 19.
BEVTVAL OP JUDOMEITTS.
110. Execution may issue within six years ifrom the
recovery of the judgment without a revival of the
judgment, under the same circiunstances under which
it may now lawfully issue in the superior Courts of
common law.
111. Where it shall become necessary to revive a
judgment, by reason either of lapse of time, or of a
change by death or otherwise of the parties entitled
150 GENEBAL OEDBBS— WBITS.
or liable to execution, the party entitled to execution
may apply to the Vice Warden for leave to have exe-
cution of the judgment and to issue execution there-
upon ; such leave to be granted upon a rule to show
cause, or a summons, to be served in such manner as
the Vice "Warden may direct, and which rule or
summons may be in the form (H.) contained in the
Schedule annexed, or to the like effect.
112. Upon such application, in case it manifestly
appears that the party making the same is entitled to
execution, the Vice Warden may allow execution to
is&ue, and may direct whether or not the costs of such
application shall be paid to the party making the
same ; and in case it does not manifestly so appear,
the Vice Warden shall discharge the rule or dismiss
the summons with or without costs.
113. In cases to which the above provision for re-
vival is not applicable, or where the Vice Warden
shall not think fit to interfere on motion or sum-
mons, the party alleged to be entitled to revival may
proceed by action on the judgment or by a writ
in the nature of a writ of revivor; and such writ
shall be in form (I.), mutatis mutandis^ in the
Schedule annexed, and shall be served and proceeded
upon as a writ of summons, and the provisions and
rules touching such writs of revivor contained in the
Common Law Procedure 'Acts, 1852 and 1854, shall
apply, and be observed so far as they are consistent
with the limited jurisdiction and constitution of this
Court, an4 with the forms of procedure and process
used therein.
DIBOOITTIFnANCE. 151
DISOOITTINUANCE.
114. A rule of Court to discontinue may be granted
by tbe Eegistrar as of course before argument, trial,
or inquiry, the plaintiff undertaking to pay costs and
consenting to judgment of nan pros upon nonpayment
within four days after taxation.
ABATEMENT OP ACTIONS.
116. The death of a plaintiff or defendant shall not
cause the action to abate, but it may be continued as
hereinafter mentioned.
116. K there be two or more plaintiffs or defend-
ants, and one or more of them die, if the cause of
action shall survive to or against the survivor or
survivors, the action shall not be thereby abated ; but
such death being suggested upon the proceedings in
the suit, the action shall proceed at the suit of, or
against, the survivor or survivors.
117. In case of the death of a sole plaintiff or sole
surviving plaintiff, his legal representative may, by
leave of the Vice Warden or Eegistrar, file a suggestion
of the death, and that he is such legal representative,
and the action shall thereupon proceed ; and if such
suggestion be made before the trial, the truth of the
suggestion shaU be tried thereat, together with the
162 GEITEBAL OBDEBS — "WHITS.
title of deceased plaintiff, and such judgment shall
fellow upon the verdict in favour of or against the
person making such suggestion, as if such person were
originally the plaintiff.
118. Where a person, entitled to revive a suit afber
the death of any party to it, refuses or omits to do so,
he may be compelled to continue it, or to pay costs, as
under sect. 92 of the Common Law Procedure Act, 1854.
119. In case of the death of a sole defendant or sole
surviving defendant, where the action survives, the
plaintiff may make a suggestion in any of the plead-
ings (if the cause has not arrived at issue), or file a
suggestion (if it has so arrived) of the death, and
that a person named therein is the executor or admi-
nistrator of the deceased, and may thereupon serve
such executor, &c., if he be found within the
jurisdiction of the Court, with a copy of the writ
and suggestion and with a notice, signed by the
plaintiff or his attorney, requiring such executor, &c.
to appear within eight days after service of the notice,
inclusive of the day of such service, and that in default
of his so doing the plaintiff may sign judgment against
him as such executor, <&c. ; and the same proceedings
may be had. and taken in case of nonappearance after
such notice as upon a writ against such executor, &c,
in respect of the salne cause of action ; and in case
no pleadings have taken place before the death, the
suggestion shall form part of the declaration, and both
may be served together, and the new defendant shall
plead thereto at the same time; and in case the
ABATEMENT OE ACTIONS. 158
plaintiff shall have declared, but the defendant shall
not have pleaded before the death, the new defendant
shall plead at the same time to the declaration and
suggestion : and in case the defendant shall have
pleaded before the death, the new defendant shall l)e
at liberty to plead to the suggestion only by way of
denial, or such plea as may be appropriate to and
rendered necessary by his character of executor, &c.,
unless, by leave of the Vice Warden, he shall be
permitted to plead fresh matter in answer to the deck-
ration : And in case the defendant shall have pleaded
before the death, but the pleadings shall not have
arrived at issue, the new defendant, besides pleaduig
to the suggestion, shall continue the pleadings to issue
as the deceased might have done, and the pleadings
upon the decoration and upon the suggestion shall be
tried together ; and in case the plaintiff shall recover*
he shall be entitled to the like judgment in respect of
the debt, damages, and costs of all the proceedings,
as he would have in the superior Courts.
120. If the plaintiff or defendant in any action
happen to die after an interlocutory judgment and
before a final judgment obtained therein, the action
shall not abate by reason thereof, if such action
might be originally prosecuted or maintaiued by or
against the executor or administrator of such plaintiff
or defendant respectively, but proceedings shall be
taken as prescribed by sect. 140 of the Common Law
Procedure Act, 1852, so far as is consistent with the
limited jurisdiction and process of the Court.
h3
154 GBNEBAL OEDEBS— WEITS.
121. The marriage of a woman plaintiff or defend-
ant shall not cause the action to abate, but the action
may, notwithstanding, be proceeded with to judgment ;
and such judgment may be executed against the wife
alone, or, by suggestion or writ of revivor, judgment
may be obtained against the husband and wife, and
execution issue thereon ; and in case of a judgment
for the wife, execution may be issued thereupon by
the authority of the husband without any writ of
revivor or suggestion ; and if in any such action the
wife shall sue or defend by attorney appointed by her
when sole, such attorney shall have authority to con-
tinue the action or defence, imless such authority be
countermanded by the husband, and the attorney duly
changed.
122. The bankruptcy or insolvency of the plaintiff
in any action, which the assignees might maintain for
the benefit of the creditors, shall not be pleaded in
bar to such action, unless the assignees shall decline
to continue, and give security for the costs thereof, on
an order of the Vice Warden to be obtained for that
purpose, within such reasonable time as the Vice
"Warden may order; but the proceedings may be
stayed until such election is made; and in case the
assignees neglect or refuse to continue the action
and give such security, the defendant may, within
eight days after such neglect or refusal, plead the
bankruptcy.
▲MENDHSNT.
AMENDBTENT.
156
128. It shall be lawful for the Vice Warden at all
times, and for the Eegistrar before hearing, and subject
to appeal to the Vice "Warden as provided in sect. 19
of the Act, 18 Vict. c. 32, to amend aU defects and
errors in any proceeding in causes, whether there be
anything in writing to amend by or not, and whether
the defect or error be that of the party applying to
amend, or not ; and all such amendments may be
made with or without costs, and upon such terms as
to the Vice Warden or Eegistrar may seem fit ; and
all such amendments as may be necessary for the pur-
pose of determining, in any exi&ting suit, the real
question in controversy between the parties, shall be
80 made.
124. Applications made for amending proceedings or
pleadings, before trial or hearing, are to be made to the
Eegistrar, and not to the Vice Warden in the first
instance, except when the CoiuH} is sitting ; and where
the application is not ex pa^te, or of course, particulars
of the proposed amendment are to be shortly specified
in the summons to attend before the Eegistrar.
125. Where the amendment made is one which will,
or may, alter or afiect the subsequent pleadings of the
opposite party, the Eegistrar is to allow to such party
such further time for pleading or amending as to him
shall seem reasonable under the circumstances; but
156 GENEBAL OBDEBS— WBITS.
not SO as to extend the time for pleading or demurring
for want of jurisdiction.
126. Where the amended pleading has been pleaded
to before amendment, and the opposite party does not
plead anew within the time allowed to him, his former
pleading shall be considered as pleaded to the amended
pleading.
DEMIJBBEB.
127. Upon the filing of a demurrer, the opposite
party must join in demurrer in four days, otherwise
judgment may be signed. The form of demurrer and
joinder will be found under (D) in the Schedule
annexed.
128. A demurrer may be set down for argument by
either party four clear days before the day on which
it is to be argued.
129. The demurrer, when filed, must state either in
the body of it, or in the margin, at least one sub-
stantial point of law intended to be argued ; otherwise
the demurrer may be set aside by the Vice Warden,
and judgment signed for want of a plea.
130. Where judgment for the plaintiff on demurrer
is not final, but interlocutory, the judgment will be an
authority to proceed to an inquiry of damages, without
further order of the Court ; or the Court may direct
a reference to the Eegistrar to ascertain the damages,
under No. 66 of these rules*
MOTIONS, AND BULES. 157
MOTIONS AND BIJLES.
131. Eules are to be dated of the day and year when
drawn up.
132. When the Court is not sitting, motions for
rules nm, and for rules absolute in the first instance,
and motions not requiring the personal attendance of
parties or their solicitors made in any cause, may be
made by handing the motion paper and accompanying
affidavits or other documents to the Secretary, who will
forthwith transmit them to the Vice Warden, unless
he shall observe any clear irregularity in the motion
or accompanying papers which he may think fit to
bring to the notice of the party moving before trans-
mission.
133. Except in cases in which it is otherwise pro-
vided by the present rules, or otherwise ordered by
the Vice Warden, rules nisi are to be drawn up to
show cause within four days after service thereof, or
within the first four days of the next sittings, (as the
case may be.)
134. Eules nisi will be no stay of proceedings unless
so expressed, except in the cases of rules for new trials,
or to enter a verdict, or a nonsuit, or to arrest judg-
ment, or for judgment non obstante^ or to set aside an
award.
135. On service of a rule or order, it shall not be
168 GEKBEAL OEDEES— WEITS.
necessaiy to show the original, unless sight thereof be
demanded, except in cases of attachment.
136. Upon motions founded upon affidavits it shall
be lawful for either party, with leave of the Vice
Warden, to make affidavits in answer to the affidavits
of the opposite party, upon any new matter arising
out of such affidavits.
137. Upon the hearing of any motion or summons
it shall be lawful for the Vice Warden, at his discre-
tion, and upon such terms as he shall think reasonable,
from time to time to order such documents as he may
think fit to be produced, and such witnesses as he may
think necessary to appear and be examined vivd voce,
either before himself or before the Eegistrar ; and upon
hearing such evidence, or reading the report of such
Eegistrar, to make such rule or order as may be just ;
and the Vice Warden may by such rule, or any subse-
quent one, or by subpoena, compel the attendance of
the witnesses named therein for the purpose of being so
examined, or the production of any writings or other
documents to be mentioned in such rule or subpoena ;
and such rule or order shall, so far as is compatible with
the limited jurisdiction of the Court, be proceeded upon
in the same manner and shall have the same force and
effect as a rule of Court under the Act 1 Wm. 4. c. 22. ;
and it shall be lawful for the Vice Warden or Eegis-
trar to adjourn the examination from time to time ;
and the proceedings upon such examination shall be
conducted, as nearly as may be, in the mode in use
KOTIONS AUTD BULES. 159
"mth. lespect to like ezaminationB in the Superior
Courts.
188. The proceedings and forms in process of
attachment within the Stannaries for disobedience
of any lawful rule or order of the Court, or of a
subpama ad testificandum^ or for any contempt, shall
as nearly as may be, and subject to the provisions of
the Act 2 & 3 Vict. c. 58, section 8, conform to the
proceedings and forms in like cases in the Court of
Queen's Bench, but any writ, which, in like cases in
the superior Courts, would run in the Queen's name,
is to be addressed by the Lord Warden to some
bailiff or bailiffs of the Stannaries, commanding him
or them, in the Queen's name, to attach, &c., and is
to be dated and sealed and to be indorsed as in the
Court of Queen's Bench ; and in and by any such writ
all constables and peace officers may be required to be
aiding and assisting the said bailiffs in the execution
thereof.
ATFIDATITS.
139. All affidavits used on motions or applications
to the Vice Warden or Eegistrar, or for any purpose
in a cause or matter, are to be filed.
140. Affidavits used on obtaining a rule nisi or
summons are to be filed immediately upon the grant-
ing of the rule or issuing of the summons.
141. All affidavits used in any cause are to be
headed " Court of the Vice Warden of the Stannaries."
160 GEITEEAL 0EDEE8— WHITS.
They are to be drawn and expressed in the first person :
K not so drawn and expressed, the affidavit may,
nevertheless, 'be read and used, but the Eegistrar
may in his discretion disallow the costs of it; and
when a deponent speaks of facts only from the infor-
mation of others, and not from his own knowledge,
he must so state in his affidavit.
142. The rules of the superior Courts of common
law as to the form of jurats, and the swearing of
affidavits before attorneys or their clerks, must be
observed in affidavits used in this Court.
STAT or PEOCEEDnTQS.
143. Interlocutory applications to the Eegistrar for
amendment, or on objection to pleadings or proceed-
ings, or for particulars of demand, or set-off, or for
other purposes, are to operate as a stay of proceedings
if, and for such time only as, the Eegistrar shall
direct.
144. The time during which proceedings in a suit
are stayed by order, or otherwise, is to be excluded in
the computation of the time limited by these orders
for filing any pleadiags.
COSTS; SETTrNQ OEF DAMAGES OE COSTS.
145. One day's notice of taxing costs, together with
a copy of the bill of costs and affidavit of increase (if
any), must be given by the attorney of the party
COSTS; SETTING OFF DAMAGES OB COSTS. 161
whose costs are to be taxed to the other party, or
his attorney, in all cases where a notice to tax is
necessary.
146. Notice of taxing costs shall not be necessary
in any case where the defendant has not appeared in
person, or by his attorney or guardian.
147. When issues in law and fact are raised, the
costs of the several issues, both in law and feet, will
follow the finding or judgment ; and if the party en-
titled to the general costs of the cause obtains a
verdict on any material issue, he will also be entitled
to the general costs of the trial ; but if no material
issue in fact be found for the party otherwise entitled
to the general costs of the cause, the costs of the trial
will be allowed to the opposite party.
148. No set-off of damages or costs between parties
shall be allowed to the prejudice of the attorney's lien
for costs in the particular suit against which the set-off
is sought ; provided nevertheless, that interlocutory
costs in the same suit, awarded to the adverse party,
may be deducted.
SEEVICE OF BULES, ETC. ON PABTIES OE THEIB
ATTOBNETS.
149. Every attorney of a party suing or defending
by attorney is to subscribe, indorse or write upon all
pleadings, notices, summonses, rules, orders or other
written proceedings his name and place of business,
and if such place be distant more than three miles
162 GEKSBAL OBDSBB — WBITS.
from the Eegistrar's Office, he is also to leave with
the Eegistrar some other address within that distance
where such proceedings may be left for him, or he
may give such other directions as he shall think fit
for service of such documents by the General Post. If
no such address for service or directions shall have
been left with the Eegistrar, the service is to be in
such other mode as shall be substituted by order of
the Vice Warden.
160. Every party suing or defending in person, is
in like manner, to subscribe, indorse or write his name
and residence upon such documents, and if his resi-
dence be distant more than three miles from the said
office, he is also to leave an address for service within
that distance, or give directions for service as above
by the General Post. In the absence of such address,
or directions for service, such documents may, by leave
of the Vice Warden, be stuck up in the office.
151. Where the proceeding is before the Registrar, —
as in the case of a reference to him or of taxation of
costs, — and no such address or directions have been
given, notices, summonses and orders by the Eegistrar
may be stuck up in the office in lieu of other service
without special leave of the Vice Warden.
152. In the case of service of any such document,
by direction of the party or his attorney, by the
General Post, the document shall be deemed to be
served at the time when it is posted, and it shall not
be necessary to show that it has reached the party
to whom it is addressed.
8EBYI0E 07 BTTLES. 163
168. Every notice required by the order or practice
of the Court shall be in writing.
164. Upon service of a rule or order, the original
need not be shown unless sight thereof be demanded.
156. Service of such documents as are above de-
scribed shall be made before seven o'clock p.m., and
service after that hour is to be deemed to be service
on the day following, excluding Sundays.
156. The above rules (No, 149 to 155) do not apply
to cases where personal service is necessary, or to cases
of attachment or process of contempt, or to cases where
other service is prescribed by these present Eules,
or by special order of the Court, or by any Act of
Parliament.
PBOGEEDI^OS IS EJECTMENT.
The action of ejectment for recovery of the posses-
sion of mines within the Stannaries, or of buildings,
machinery, works and waters annexed thereto and oc-
cupied therewith, shall be prosecuted in the following
manner : —
157. A writ shall be issued, directed to the persons
in possession by name, and to all persons entitled to
defend the possession of the property claimed, which
property shall be described in the writ with reasonable
certainty, and the Stannaries or county in which it is
situate shall be specified.
158. The writ shall state the names of all the per-
sons in whom the title is alleged to be, and command
164 GXI!rBBAL OBDEBS— VTBITS.
the persons, to whom it is directed, to appear within
fourteen days after service thereof, to defend the posses-
sion of the property sued for, or such part thereof as they
may think fit, and it shall contain a notice that in default
of appearance they will be turned out of possession ;
and the writ shall bear date of the day on which it is
issued, and shall be in force for three months, and
shall be in the form (K.) contained in the Schedule
annexed, or to the like effect ; and be indorsed with
the name and abode, &c., of the attorney or party
issuing it, as in case of writs of summons under Eule,
No. 3.
169. The writ shall be served within the jurisdic-
tion, or, by order of the Vice "Warden, out of the juris-
diction, in the same manner as in the superior Courts
of common law, or in such manner as the Vice Warden
shall upon motion order, and, in case of vacant posses-
sion, by posting a copy thereof upon the door of the
Account House, or other conspicuous part of the pro-
perty sought to be recovered, and moving, upon an
affidavit of the circumstances, that the same be suffi-
cient service.
160. Application to the Vice Warden for leave to
serve any writ out of the jurisdiction under sect. 16
of the Act 18 Vict. c. 32. is to be by motion, exparte^
and affidavit, showing the necessity of such service.
161. The persons named as defendants in such writ,
or either of them, shall be allowed to appear within
the time appointed.
162. Any other person not named in such writ
PB0CEKDIN68 IN EJICTMSITT. 165
shall, by leave of the Vice Warden or of the Begis-
trar, be allowed to appear and defend on filing an
affidavit showing that he is in possession of the land
either by himself or his tenant; and he shall thereupon
enter an appearance in the action against the party or
parties named in the writ as defendant or defendants,
and shall forthwith give notice of such appearance to
the plaintiff's attorney, or to the plaintiff if he sues in
person.
163. A person named as defendant in the writ, or
allowed to appear and defend, shall be entitled to file
a demurrer or plea to the jurisdiction within ten days
after service or notice of the writ.
164. Any person appearing to defend as landlord in
respect of property whereof he is in possession only by
his tenant, shall state in his appearance that he appears
its landlord; and shall be at liberty to set up any de-
fence which a landlord appearing in an action of eject-
ment has heretofore been allowed to set up, and no
other.
165. Any person appearing to such writ shall be at
liberty to limit his defence to a part only of the pro-
perty mentioned in the writ, following the directions
contained in sect. 174 of the Common Law Procedure
Act, 1852.
166. Want of " reasonable certainty" in the descrip-
tion of the property shall not nullify the proceedings,
but shall only be ground for an application to the Vice
Warden or Eegistrar for better particulars of the land
claimed or defended, who shall have power to give
166 aSlTEBAL OBDEBS— WRITS.
them in all cases, and also to order the plaintiff to give
particulars of the breach of condition, or other cause
of forfeiture or re-entry in respect of which the action
may be brought.
167. The Vice "Warden shall have power to strike
out or confine appearances and defences set up by
persons not in possession by themselves or their
tenants.
168. In case no appearance shall be entered
within the time appointed, or if an appearance be
entered but the defence be limited to part only, the
plaintiffs shall be at liberty to sign a judgment that
the person, whose title is asserted in the writ, shall re-
cover possession of the land, or of the part thereof to
which the defence does not apply; which judgments may
be in the forms (L.) in the Schedule annexed. But
no judgment in ejectment for want of appearance or
defence, whether limited or otherwise, shall be signed
without first filing an affidavit of due service of the
writ and a copy thereof, or, where personal service
has not been effected, without first obtaining an order
of the Vice Warden authorizing the signing such
judgment.
169. When an appearance shall be entered, an issue
may at once be made up, without any pleadings, by the
claimant, setting forth the writ, the appearance with
its date, the notice, if any, limiting the defence of each •
defendant appearing, and directing the summoning of
a jury. Such issue, where the defence is for the whole,
may be in the form (M.) contained in the Schedule
annexed, or to the like effect.
PB00BSDINO8 ly EJEOTHSITT. 167
170. By consent of the parties, and by leave of the
Vice Warden, a special case may be stated according
to the practice under the statute of 3 <& 4 Wm. 4.
c. 42. 8. 25.
171. The claimant is to proceed to trial upon the
imue in the same manner as in other actions ; and
copies of the particulars of the claim and defence, if
any, and of the breaches of condition, &c., are to be
annexed to the issue by the claimant ; and the ques-
tion at the trial shall, (except in the cases hereafter
mentioned), be, whether the statement of the title of
the claimant is true or false, and, if true, then which
of several claimants, if more than one, is entitled, and
whether to the whole or part, and which part, of the
property in question, and the verdict may be recorded
in the Form (N.) in the Schedule.
172. In case the title of the claimant shall appear
to have expired after service of the writ and before
the trial, the claimant shall, notwithstanding, be
entitled to a verdict according to the fact, and to a
judgment for his costs of suit.
173. If the defendant appears, and the plaintiff or
claimant does not appear at the trial, the plaintiff or
claimant shall be nonsuited, and the defendant shall
be entitled to judgment for costs of suit ; and if the
plaintiff or claimant appears, and the defendant does
not appear, the plaintiff or claimant shall be entitled
to a verdict without producing any evidence, and
shall have judgment for his costs.
174. Upon a finding for the claimant, judgment
168 OEKEBAL OBDEBS — ^WBITS.
may be signed, and execution issue for the recovery of
possession of the property and for coats within such
time after the verdict as the Court shall order ; and
if no such order be made, then within ten days after
such verdict ; and in like manner upon a finding for
the defendant, or any defendant, judgment may be
signed, and execution issue for costs against the
claimant or claimants named in the writ within such
time as the Court shall order ; and if no such order be
made, then within ten days after such verdict.
175. Upon any judgment in ejectment for recovery
of possession and costs, there may be either one writ
or separate writs of execution for the recovery of
possession and for the costs, at the election of the
claimant.
176. Where an action is brought by some or one
of several joint tenants, tenants in common, or copar-
ceners, against his co-tenant in possession, the defend-
ant may proceed in his defence in conformity with the
practice of the superior Courts in like case, and the
issue, trial and judgment shall be the same, mutatis
177. The provisions of the Common Law Proce-
dure Act, 1852, in case of the death of the parties to
an action of ejectment, shall be adopted in the action
of ejectment brought in the Vice Warden's Court.
178. A claimant in ejectment shall be at liberty at
any time to discontinue as to one or more of several
defendants, who may thereupon have judgment for costs,
as in Form (0.) in the Schedule ; and one of several
P£OC££DIKGS IN EJECTMENT. 169
claimants may apply to the Vice Warden or Kogistrar
to discontinue and have his name struck out of the
proceedings, who may make such order accordingly as
under the same Act.
179. If after appearance the claimant omits to bring
on the issue for trial at the next practicable sittings
according to the practice of the Court, the defendant
in ejectment may give fifteen days' notice to the claim-
ant to proceed to trial at the sittings next after the
expiration of the notice ; and if the claimant afterwards
neglects to give notice of trial for such sittings, or to
proceed to trial in pursuance of the said notice given
by the defendant, and the time for going to trial shall
not be extended by the Vice Warden, the defendant
may sign judgment and recover the costs of defence,
and the entry of such judgment may be in the form (P)
in the Schedule.
180. A sole defendant or all the defendants in eject-
ment may confess the action as to the whole or part of
the property by giving to the claimant a notice headed
in the Court and cause, signed by the defendant or
defendants, and attested by his or their attorney ; and
thereupon the claimant shall be entitled to judgment
and execution for the recovery of possession and costs,
and the entry thereof may be in the form (Q) in the
Schedule.
181. In the case of one of several defendants in
ejectment who shall desire to confess the claimants'
title to the whole or part, the practice shall follow
that of the superior Courts.
I
170 GENEBAL 0BDEB8 — WBITS.
182. Where the writ of ejectment is brought by
landlord against tenant for forfeiture of premises by
reason of rent or dues in arrear, or for holding over
after the determination of the sett or lease, the pro-
visions of the Common Law Procedure Act, 1852, as
to procedure, recovery of mesne profits, and other
matters referred to in the same act shall be appli-
cable, and may be put in force, so far as is compatible
with the limited authority and jurisdiction of the
Court ; saving, however, the right of such landlord to
proceed under the foregoing provisions at his election.
183. The Vice Warden shall and may, so far as by
law he may or can, exercise over the proceedings in
ejectment the like jurisdiction usually exercised by
the superior Courts of law in the action of ejectment
for the purpose of ensuring a trial of the title or (in
the case of cotenants) of the fact of actual ouster, where
such ouster is necessary to support the action, and for
all other purposes for which such jurisdiction is now
exercised in the said courts.
Forms of execution in ejectment will be found
under (E.) in the Schedule annexed.
CLAIM or INJUNCTION.
184. In all cases of breach of contract or other
injury, where the party injured is entitled to maintain,
and has brought, an action, he may claim a writ of
injunction against the repetition or continuance of such
breach of contract or other injury, or the committal
CLAIM OF UrjTTSCTlOy. 171
of any breach of contract or injury of a like kind
arising out of the same contract, or relating to the
same property or right ; and he may also in the same
action include a claim for damages or other redress.
185. The writ of summons in such action shall be
in the same form as the writ of summons in other per-
sonal actions, but on every such writ and copy thereof
there shall be endorsed a notice that in default of
appearance the plaintiff may, besides proceeding to
judgment and execution for damages and costs, apply
for and obtain a writ of injunction. The indorsement
is to be in the form (S) in the Schedule.
186. The proceedings and judgment in such action
shall be the same, as nearly as may be, and subject to
the like control, as the proceedings and judgment in a
like action in the superior courts: and in case of
disobedience such writ of injunction may be enforced
by attachment by the Vice Warden within the juris-
diction of his Court.
187. It shall be lawful for the plaintiff at any time
after the commencement of the action, and whether
before or after judgment, to apply ex parte to the Vice
Warden for a writ of injunction to restrain the de-
fendant in such action from the repetition or continu-
ance of the wrongful act or breach of contract com-
plained of, or the committal of any breach of contract
or injury of a like kind arising out of the same con-
tract or relating to the same property or right ; and
such writ may be granted or denied upon such terms as
to the duration of the writ, keeping an account, giving
I 2
172 GEIOBBAL 0BDEB8 — VTBITS.
security, or otherwise, as to the Vice Warden shall
seem reasonable and just, and in case of disobedience
such writ may be enforced by attachment within the
said jurisdiction ; or the order may, on application, be
varied, discharged, or set aside.
MISGELLATTEOTIS.
188. On every appointment made by the Eegistrar,
the party on whom the same shall be served shall
attend such appointment without waiting for a se-
cond, or in default thereof the Eegistrar may proceed
ex parte on the first appointment.
189. In all causes in which there have been no
proceedings for one year from the last proceeding
had, the party, whether plaintiff or defendant, who
desires to proceed shall give a calendar month's notice
to the other party of his intention to proceed. The
summons of the Vice Warden or Eegistrar, if no
order be made thereupon, shall not be deemed a
proceeding within this rule. Notice of trial, though
afterwards countermanded, shall be deemed a proceed-
ing within it.
190. When the time for doing an act is limited by
a certain number of days from or after any date or
event, the computation shall exclude the day of the
date or event, and include the last day of such limited
time ; unless clear do/ys shall be expressed.
191. When the last day so limited expires on
laSCELLAITEOUS. 173
Sunday, or any other day when the office is not open,
that day shall also be excluded from the computation.
192. The power of the Vice Warden or Eegistrar
to enlarge or abridge the time for doing any act, or
taking any proceeding, in a cause, is unaffected by
these orders.
193. Where the directions contained in these orders
with respect to procedure or practice or other matters
shall, through accident, mistake or oversight of parties,
fidl to be followed, the Court reserves the power to
rectify such mistake or oversight upon payment of
costs or other terms as may be justified by the merits
of the case.
INTEBPBBTATIOIT OF ErLES.
194. In these Eules the following words are to
be interpreted as follows, except where the context
requires a different construction : —
The word "Be^trar*' includes any Eegistrar or
person performing the duties of Eegistrar in and
for the Stannaries of Devon.
Party or person includes a body corporate or com-
pany competent to sue or be sued by its officer, or in
its registered name, and also a next friend and guardian
ad litem.
Affidavit includes affirmations; words importing the
male sex include females; and words importing the
singular number include the plural number, and
e converso.
SCHEDULE OF FORMS.
SUITS BY WHIT.
The following forms, and the use to be made of them, are to
be considered as subject to the introductory observation
on the Schedule of Forms, ante p. 101.
(A.)
WEIT or SUMMONS.
The Lord Warden of the Stannaries
To C. D. of in the county of
I command you, that within eight days after the service
of this writ on you, inclusive of the day of such service, you
do cause an appearance to be entered for you at the office
of the Registrar of the Court of the Vice Warden of the
Stannaries at [Truro'] in an action at the suit of A. B.; and
take notice, that in default of your so doing the said A. B.
may proceed therein to judgment and execution. Dated
this day of
By the Court, (l. s.)
Memorandum to be subscribed on the writ
K.B. — This writ is to be served within three calendar
months from the date thereof, or if renewed, from the
date of such renewal, including the day of such date,
and not afterwards.
176 SCHEDULE OF TOBMS — WBITS.
Indorsement to be made on the writ before service thereof.
This writ was issued by E. F. of attorney for
the said plaintiff, or, — This writ was issued in person by
A. B., who resides at \meniion t?ie city, toum, or
parish, and also the name of the street and number of the
house, if any.l
Indorsement to be made on the ujrit after service thereof by the
bailiff.
This writ was served by X. Y. on L. M. [the defendant
or one of the defendants'], on Monday the day
of 18 .
(Signed) X. Y. (the bailiff or person serving,)
Further indorsement before service, when the action is for
payment of a debt, [See Rule No. 4, ante].
The plaintiff claims £ for debt and £
for costs, and if the amount thereof be paid to the plaintiff
or his attorney within four days from the service hereof,
further proceedings will be stayed.
(B.)
SPECIAI^ INDOBSEMSm:' ON A WBIT UNDEB BDLE NO. 8.
The following are the particulars of the plaintiff's claim.
[State the particulars with dates according to the fact ; for
example"] :
'* £50 on a bill of exchange for £100, dated, &c., accepted
by the defendant ;" or " 20 tons of coals supplied to the
defendant on 1 Deer. 1850, £14."
SCHEDULE OF FOBMS. 177
[7/* an account has been delivered, it may be referred to
with its date ; or the claim must be described so as to dispense
with application for further particulars.
Add a claim of interest (where payable) from the date of
the writ until judgment.
Add also thefoUounng notice"] : —
Take notice that if a defendant, served with this writ
within the Stannaries, does not appear according to the
exigency thereof, the plaintiff will be at liberty to sign final
judgment for a sum not exceeding the sum above claimed
[with interest at the rate specified], and the sum of
for costs, and to issue execution at the end of eight days
after the last day for appearance.
(C.)
JUDGMENT BT DEFAULT ON A WSIT SPECTALLT DTDOBSED.
In the Court of the Vice Warden of the Stannaries.
On the day of a.d.
Stannaries of 1 A. B. in his own person \or, by
to wit. J his attorney] sued out a
writ of summons against C. D., indorsed as follows :
[Here copy special indorsement].
And the said C. D. has not appeared : therefore it is con-
sidered that the said A. B. recover against the said C. D.
£ together with £ for costs of suit.
(L.S.)
(D.)
DECLABATION AND PLEADINGS.
(1.) FOBM OF DECLARATION.
The Court of the Vice Warden of the Stannaries.
The day of a. d.
I 3
178 SCHEDULE OF EOEMS — WBIT8.
Stannariesof Cornwall, 1 A. B., miner, by X. his attorney,
[or Devon] to wit. J sues C. D., miner, for Ihere state
the cause of action, concltuiing as/oUows'\ : "and the plaintiff
claims £ ," [or, if the action be to recover specific
goods'} " claims a return of the said goods or their value,
and £ for their detention.
[The form of a declaration upon a plea in abatement for
nonjoinder will be found in sect. 60 of the Common Law
Procedure Act, 1852.]
[Notice to plead within ten days, or judgment, is to be
indorsed on this declaration.]
Statements of Causes of Action,
The following forms of pleading or the like forms, may
be used with such modifications as the facts may require,
but a departure from them will not make them irregular,
if the language be intelligible, and the real ground of
action be apparent and expressed without needless prolixity.
When the cause of action arises within the Stannaries or
relates to mines and minerals within them, it will be advis-
able always to show this ; and where only one of the par-
ties is a miner, it will be necessary to show it. If the suit
be within the Stannaries of Devon the cause of action must
appear to relate to some of the matters referred to in
sect. 32 of 18 Vict. c. 32.
On Contracts,
1. For money payable by the defendant to the plaintiff
for goods bargained and sold by the plaintiff to the defendant
[" toithin the Stannaries aforesaid^* is to be added in this and
the following forms, when necessary.]
2. Work done and materials provided by the plaintiff for
the defendant at his request.
SCHEDULE OF FOBMS. 179
3. Money lent by the plaintiff to the defendant.
4. Money paid by the plaintiff for the defendant at his
request.
5. Money received by the defendant for the use of the
plaintiff.
6. Money found to be due from the defendant to the
plaintiff on accounts stated between them.
7. The defendant's use, by the plaintiff's permission, of
messuages and lands of the plaintiff, [situate within the Stan-
naries aforesaid]^ or of a watercourse, or of a stream of
water of the plaintiff, &c.
8. The hire of [as the case may be"} let to hire by the
plaintiff to the defendant.
9. Freight for the conveyance by the plaintiff for the
defendant at his request of goods in a ship.
10. That the defendant on the day of a.d.
by his promissory note, given in payment for ores sold and
delivered within the Stannaries aforesaid, and now over
due, promised to pay to the plaintiff £ two months
after date, but did not pay the same. '
11. That one A., on &c. [dafe], by his promissory note,
now over due, promised to pay to the defendant, or order,
£ [two'] months ^fter date; and the defendant
indorsed the same to the plaintiff; and the said note was
duly presented for payment, and was dishonoured, whereot
the defendant had due notice, but did not pay the same.
12. That the plaintiff, on &c. [date], by his bill of ex-
change, now over due, directed to the defendant, required
the defendant to pay to the plaintiff £ two months
after date ; and the defendant accepted the said bill, but
did not pay the same.
13. That the defendant, on &c. [date], by his bill of ex-
change directed to A., required A. to pay to the plaintiff
£ months after date ; and the said bill was
duly presented for acceptance, and was dishonoured, of
which the defendant had due notice, but did not pay the
180 SCHEDULE OF FORMS — WEITS.
14. That the defendant occupied a mine, situate &c.
under the sett or licence of the plaintiflT, for the space of
, on the terms of paying to the plaintiff the dues
following, namely [state them], and that the dues now in
arrear, and payable by the defendant to the plaintiff, in
respect of ores found in the mine and sold or disposed of by
the defendant, amount to the sum of , which the
defendant has not paid in pursuance of the sett or licence.
15. That the plaintiff let to the defendant a house,
situate , for seven years, to hold from the
day of A.D. at £ a year, payable
quarterly, of which rent quarters are due and
unpaid.
16. That the plaintiff by deed let to the defendant a ,
within the Stannaries of , to hold for years, from
the day of a.d. , and the defendant by the said
deed covenanted with the plaintiff well and substantially to
repair the said during the said term [according to
the covenant'], yet the said house was during the said term
out of good and substantial repair.
For Wrongs independent of Contract.
17. That the defendant broke and entered certain land
of the plaintiff, situate within the Stannaries of ,
called , and depastured the same with cattle.
18. That the defendant assaulted and beat the plaintiff,
and caused him to be imprisoned.
19. That the defendant converted to his own use, or —
wrongfully deprived the plaintiff of the use and possession
of, the plaintiff's goods ; that is to say, [specify the articles
as the case may he].
20. That the defendant detained from the plaintiff certain
deeds and papers; that is to say, [describe the deeds or
papers].
21. That the plaintiff was possessed of a water wheel and
SCHEDULE OF FOBMS. 181
stamps within the Stannaries of , and was entitled
to the use of a stream of water within the same Stannaries
for working the same, and the defendant, by cutting the
bank of the said stream at a place situate within the same
Stannaries, wrongfully diverted the water thereof away
from the said wheel and stamps.
22. That the defendant fraudulently sold to the plaintiff
ten shares of and in an adventure or mine, called ,
in the Stannaries of , falsely stating to the plaintiff
that the same was then paying large dividends to the share-
holders, whereas the defendant well knew at the time of the
sale that no dividend had been paid to any shareholder
therein for a long time before the sale, but that the mine
had been and then was unprofitable.
(2.) PLEA.
23. IHeading and name of case, as usual.'] The defendant
by his attorney [or in person] says [here state the
substance of the plea"],
24. And for a second plea the defendant says [here state
the second plea].
A plea to the jubisdiction may be pleaded as in suits by
plaint, Rule 28 (ante, p. 78).
Examples of Pleas in Actions on Contracts,
25. That he never was indebted as alleged.
[This plea is applicable to declarations like those numbered
1 to 9.]
26. That he did not promise as alleged.
[This plea is applicable to other declarations on simple con-
tracts, not on biUs and notes. It would be also unobjectionable
to use '* did not warrant," " did not agree," where the dedara-
tion states a warranty or agreement, ^c, or to use any other
appropriate denial,]
27. That the alleged deed is not his deed.
28. That the alleged cause of action did not accrue
within six years [state the period of limitation applicable to
the case] before this suit.
182 SCHEDULE OF F0EM8 — WRITS.
29. That before action he satisfied and discharged the
plaintiff*s»claim by payment.
30. That the plaintiff at the commencement of this suit
was, and still is, indebted to the defendant in an amount
equal to the plaintiff's claim, for [Aerc state the cause of set'
off^ as in a declaration; see Forms, p. 178, 179,awte], which
amount the defendant is willing to set off against the
plaintiff's claim.
31. That after the alleged claim accrued, and before this
suit, the plaintiff by deed released the defendant therefrom.
Pleas in Actions for Wrongs independent of Contract.
32. That he is not guilty.
33. That he did what is complained of by the plaintiff^s
leave.
34. That the plaintiff first assaulted the defendant, who
thereupon necessarily committed the alleged assault in his
own defence.
(3). EEPLICATION.
35. [Heading, ^c] The plaintiff takes issue upon the
defendant's 1st, 2nd, &c., pleas.
36. The plaintiff as to the second plea says \here state the
answer to the pleas as in the following Forms.']
Examples of Replications.
37. That the alleged release is not the plaintiff's deed.
38. That the alleged release was procured by the fraud
of the defendant. •
39. That the alleged set-off did not accrue within six
years before this suit.
40. That the plaintiff was possessed of land whereon the
defendant was trespassing and doing damage, whereupon
the plaintiff requested the defendant to leave the said land,
which the defendant refused to do; and thereupon the
SCHEDULE OF FOEMS. 183
plaintiff laid his hands on the defendant in order to
remove him, doing no more than was necessary for that
purpose, which is the alleged first assault by the plaintiff.
(4.) NEW ASSIGNMENTS.
These may be used when necessary, but as they are of
occurrence in the proceedings in this Court, and can
generally be avoided by the plaintiff, no examples are
inserted here.
(5.) DEMUBBEA.
[Headings Sfc.'\ " The defendant by his attorney,
says that the declaration is bad in substance."
The joinder, in demurrer may be to the following
effect : —
"The plaintiff says that the declaration is good in sub-
stance."
The like form may be used when the demurrer is to the
plea, &c.
A demurrer for apparent want of jubisdiction may be
in the form used in suits by plaint, Rule 27 (an/c, p. 78).
(E.)
NOTICE TO ADMIT DOCUMENTS.
In the Court of the Vice Warden of the Stannaries.
A. B. -| Take notice, that the plaintiff \or defendant] in this
V, > cause proposes to adduce in evidence the several
C. D. J documents hereupder specified, and that the same
may be inspected by the defendant [or plaintiff], his attor-
ney or agent, at on , between the hours of
; and* the defendant [or plaintiff] is hereby re-
quired, within forty-eight hours from the last-mentioned
hour, to admit that such of the said documents as are spe-
cified to be originals were respectively written, signed, or
184
SCHEDULE OF FOBMS — WEITS.
executed, as they purport respectively to have been ; that
such as ^e specified as copies are true copies; and such
documents as are stated to have been served, sent, or
delivered, vere so served, sent, or delivered respectively ;
saving all just exceptions to the admissibility of all such
documents as evidence in this cause. Dated, &c.
To E. F., Attorney
G. H., Attorney
or [" agent"] for | ^^^^' | or " agent" for |
plaintiff,
defendant
IHere describe the documents, the manner of doing which may
he as follows'} : —
ORIGINALS.
Description of the Documents.
Memorandum of Agreement between A. B.
and C. D.
Indenture of Lease from A. B. to C. D.
Bill of Exchange for £100 at Three Months,
drawn by A. B. on and accepted by C. D.,
endorsed' by E. F. and G. H. -
Date.
1st Jan. 1850.
1st Feb. 1848.
1st May 1840.
COPIES.
Description of Documents.
Original or Duplicates served,
sent, or delivered, when,
how, and by whom.
Letter — plaintiff to
defendant -
Notice to produce
papers
Ist Feb. 1848.
Ist Mar. 1848.
Sent by i
2nd Feb. 1848.
Served 2nd March, 1848,
on defendant's attorney,
by E. F., of—
SCHEDULE OF FOBMS. 185
(F.)
JUDOMENTS.
1. Form of Judgment after a Verdict for the Plaintiff.
In the Court of, &c.
The day of , in the year Idate of
declaration].
Stannaries of , to wit.] A. B. by P. A^ his
attorney [or in person]^ sues C. D., who has been sum-
moned to answer A. B., by virtue of a writ issued on the
day of A.D. [the date of the writ, or the first
writ], out of the abovementioned Court, for [copy the
declaration and pleadings, with their dates, writing each in a
separate paragraph, and numbering them as in the pleadings.
After the pleadings conclude thus] : Afterwards, on the
day of , A.D. [the first day of sittings] come the
parties aforesaid, by their respective attorneys,* and a jury
of the said Stannaries being summoned also come, who
being sworn to try the matters in question between the
said parties upon their oath say that [state the negative or
affirmative of the issue, as found, and in the terms pleaded.
If there be several issues then say, " as to the first issue joined
upon their oath say that^^ ^c], and they assess the damages*
of the plaintiff on occasion of the premises within complained
of by him, over and above his costs of suit, to £
Therefore it is considered by the Court here that the
plaintiff do recover against the defendant the monies by the
persons so assessed, and also £ for his costs of suit
by the same Court here adjudged to the plaintiff, which
said monies and costs amount in the whole to £
[/» the margin write the day of signing judgment],
[The above form is adapted to an action for damages.
If it be for a debt, it must be varied accordingly].
186 SCHEDULE OF FORMS — WEITS.
2. Fona of Judgment upon the Tried by the Vice Warden
under Rule 89.
[The form is to he like the last down to the first asterisk.
Then proceed thus"] : and the Vice Warden of the Stanna-
ries, to whom, by consent in writing of the said parties duly
signed, the decision of the said issue [or several issues'] was
left, decides the said issue above joined [or the first issue,
SfC, as the fact may be"], in favour of the plaintiff, and he
assesses the damages [The rest after the second asterisk
is to be the same as in the last example,]
[Where it may be more convenient so to do, the finding
on the issues by the jury may be entered shortly, as in the
second example ; so the finding of the Vice Warden may
be entered in the manner specified in the first example].
(G.)
EXECUTION.
1. Writ of Fieri Facias for the Plaintiff for Execution
within the Jurisdiction.
The Lord Warden of the Stannaries to my bailiffs of the
Stannaries, E. F. and G. H., and to each of them, greeting:
I command you, and each of you, in the name of her
Majesty the Queen, that of the goods and chattels of CD.
within the Stannaries of Cornwall or Devon (a), you cause
to be made £ [the amount of aU the monies recovered
by the judgment], which A. B. lately, in the Court of the
Vice Warden of the Stannaries, recovered against him,
whereof the said CD. is convicted, together with interest
upon the said sum at the rate of four pounds per centum
per annum from the day of , in the year
of our Lord , on which day the judgment aforesaid
was entered up, and have you or one of you that money,
(a) Both are to be inserted.
scHEDrLE or roBMS. 187
with such interest as aforesaid, at the office of the Registrar
of the said Court [at Truro"], immediately after the execu-
tion hereof, to be rendered to the said A. B. ; and that jou
do all such things as by the statute passed in the second
year of the reign of her Majesty the Queen you are autho-
rized and required to do in this behalf. And in what
manner you or either of you shall have executed this writ
make appear to the said Court immediately after the exe-
cution thereof, and have you, or one of you, there then this
writ. Dated this, &c. By the Court, (l. s.)
[The Indorsement is to be as in like writs in the Superior
Courts of common law.
The clause for levying four per cent, interest may be
omitted, if not required by the party suing out the writ].
2. Writ of Fieri Facias on a Judgment for Defendant,
The Lord Warden [as above"] to my bailiffs [as above],
greeting :
I command you, and each of you, in the name of her
Majesty the Queen, that you cause to be made of the
goods and chattels of A. B. within the Stannaries of
Cornwall or Devon, (a) £ , which lately in the Court
of the Vice Warden of the Stannaries were awarded
to C. D. for his costs of defence in an action lately prose-
cuted in the said Court by the said A. B. against the said
C. D., whereof the said A. B. is convicted, together with
interest on the said sum at the rate of four pounds per
centum per annum ft'om the day of , in
the year of our Lord , on which day the judgment
aforesaid was entered up, and have you, or one of you, that
money at the office of the Registrar of the said Court [at
Truro], immediately after the execution hereof, to be ren-
dered to the said CD.; and that you do all such things as
by the Statute passed in the second year of the reign of her
(a) Both to be inserted.
188 SCHEDULE OF FOBMS — WBITS.
Majesty the Queen, you are authorized and required to do
in this behalf. And in what manner you or either of you
shall have executed this our writ make appear to the said
Court immediately after the execution thereof, and have
you, or one of you, there then this writ. Dated, &c.
By the Court, (l. 8.)
[Indorsement as in the Superior Courts : See last form.]
3. Writ of Fieri Facias for Execution out of the
Jurisdiction.
The writ, whether for plaintiff or defendant, will exactly
resemble those used in proceedings by plaint. See forms
(E.) under that head, ante, pp. 105, 106, 107, 108.
4. WRIT OF CAPIAS AD SATISFACIENDUM FOB THB
PLAINTIFF.
The Lord Warden of the Stannaries, to my bailiffs of the
Stannaries, E. F. and G. H. and to each of them, and to
the keeper of the gaol or prison, commonly called the
County Gaol at Bodmin in the county of Cornwall, [or
" at Fxeter'^ (as the case may be) " in the county of Z>etw»i"],
greeting.
I command you E. F. and G. H., and each of you, in the
name of her Majesty the Queen, that you take C. D. if he
be found within the Stannaries of Cornwall or Devon, and
him safely keep, so that you, or one of you, may have his
body at the said gaol or prison ; and you and each of you
are hereby commanded to deliver his body without delay
into the custody of the keeper of the said gaol or prison, to
satisfy A. B. £ [the whole amount recovered by the judg'
menC], which the said A. B. lately in the Court of the Vice
Warden of the Stannaries recovered against the said C. D.,
whereof the said C. D. is convicted, together with interest
upon the said sum at the rate of 4 per cent, per annum
SCHEDULE OF FOBMS. 189
from the day of , in the year &c., on which
day the judgment aforesaid was entered up; and have you
or one of you this writ before the said Court immediately
after the execution thereof; and tou the said keepbb are
hereby authorized and required, by force of the statute in
that case made and provided,(a) to receive the said C. D.
into the said gaol or prison, there to maintain, support, and
provide for him, as if he had been arrested and committed
to the said gaol or prison by virtue of a writ of capias ad
satisfaciendum issued out of one of Her Majesty's Courts of
common law at Westminster, and him safely to keep there,
until the said A. B. shall be fully satisfied the said £
with interest as aforesaid, or until the said CD. shall be
otherwise discharged in due course of law. Dated this, &c.
By the Court, (l. s.)
[Indorsement as on a ca. sa. out of the Superior Courts.]
[Where the ca. sa. is in respect of a cause in the Stan-
naries of Devon, the gaol must be selected and named by the
Vice Warden in the particular case, and the language of the
writ as to the treatment of the prisoner in gaol is to be
modified in conformity with that of sect. 37 of the Act 18
Vict. c. 32.]
•5. Writ of capias ad satisfaciendum far the defendant,
[As above, substituting the following words] " to satisfy
C- D. £ (the taxed costs), which lately in the Court of
the Vice Warden of the Stannaries were awarded to the
said C. D. for his costs of defence in an action lately pro-
secuted in the said Court by the said A. B. against the said
C. D., whereof the said A. B. is convicted, together with
interest," &c.
(a) The provision in the case of Cornwall is sect. 40 of 6 & 7
Wm. 4. c. 106. In the case of Devon it is sect 37 of 18 Vict.
C.32.
190 SCHEDULE OF FOBMS — WRITS.
(H.)
RULE OS SUMMONS TO BEYIYB A JUDGMENT.
(See Rule No. 111.)
In the Court, &c. [usual heading and formal parts'},
A. B. "J Let C. D. show cause on the day of
V. V (or be/ore me on the day of ), why
C. D. J A. B. (or as the case may be) should not have exe-
cution in this action, wherein A. B. was plaintiff, and C. D.
was defendant, and wherein A. B. obtained a judgment for
£ against the said CD. on the day of ,
and have leave to issue execution thereon, if it shall mani-
festly appear to the Court (or to me) that the said A. B. is
entitled to such execution.
By the Court, (l. s.)
[Or to be signed by the Vice Warden, if it be
a summons to attend before him].
The form may be modified and adapted to the case of an
application by or against executors, &c., of a party.
a)
WBIT OP BEYIVOB.
The Lord Warden, &c. to E. F. greeting.
I command you that within eight days after service of
this writ on you, inclusive of the day of such service, you
appear in the Court of the Vice Warden of the Stannaries
at [Truro"], to show cause why A. B. [or C. i>., as executor
of the last ufiU and testament of A. B, deceased^ as the case
may be} should not have execution against you [as executor
SCHEDULE OF POEMS. 191
of the last wiU and testament of deceased^ if the fact he so]
of a judgment, whereby A. B. [or C i)., as the case may he\
on the day of in the said Court recovered
against you [or as the case may 5c] £ ; and take
notice that in default of your so doing the said may
proceed to execution. Dated, &c.
By the Court, (l. s.)
Mem. You may appear to this writ by giving to the
plaintiff named in it, or to his attorney or agent, a notice in
writing that you appear to the same, or your attorney may
give such notice for you.
As to procedure and pleadings on revivor, see Common
Law Procedure Act, 1852, sections 131, 132, 133,
134.
(K.)
FOBM OF WBIT OF EJECTMENT.
The Lord Warden, &c., to X., Y., Z., and all persons
entitled to defend the possession of [describe the
property with reasonable certainty'} at in the Stanna-
ries and county of , to the possession whereof A.,
B., and C, some or one of them, claim to be [or to have
been on and since the day of a.d. ]
entitled, and to eject all other persons therefrom :
These are to will and command you, or such of you as
deny the alleged title, within fourteen days after service
hereof, to appear in the Court of the Vice Warden of the
Stannaries to defend the said property, or such part thereof
as you may be advised to defend; in default whereof
judgment may be signed, and you turned out of possession.
Dated this day of, &c.
By the Court. (l.s.)
Mem. You may cause your appearance to be entered
192 SCHEDULE OF EOKMS — WRITS.
within the time specified above at the office of the Registrar
of the Court at \_Truro].
(L.)
JUDGMENT IN EJECTMENT IN CASE OF NON-APPEABAKCE.
In the Court of the Vice Warden of the Stannaries.
The daj of 18 . [date of the ivrit].
Stannaries of 1 On the day and year above written, a writ
, to wit. J of the Lord Warden issued forth of this
Court in these words ; that is to say,
The Lord Warden, &c. [^here copy the writ']; and no
appearance has been entered or defence made to the said
writ : therefore it is considered that the said [^here insert
the names of the persons in whom title is alleged in the writ]
do recover possession of the land [mine or other property
described in the writ] in the said writ mentioned, with the
appurtenances.
2. The like^ where Judgment is for Part ordy.
In the Court [as above].
On the day of , a.d. 18
Stannaries of 1 On the day and year above written, a writ
^ to wit. J of the Lord Warden issued forth of this
Court, in these words ; that is to say,
The Lord Warden, &c. [here copy the writ] ; and C. D.
has, on the day of , appeared by ,
his attorney [or in person]^ to the said writ, and has de-
fended for a part of the land in the writ mentioned ; that is to
say [here state the part]y and no appearance has been entered
or defence made to the said writ except as to the said part :
Therefore it is considered that the said A. B. [the claimant] do
recover possession of the land [or other property] in the said
SCHEDULE OF EOBMS. 193
writ mentioned, except the said part, with the appur-
tenances, and that he have execution thereof forthwith ;
and as to the rest, let a jurj be summoned, &c.
(M.)
ISSUE IN EJECTMENT.
In the Court [a? abovel.
On the day of , ad. 18 [date of writ].
Stannaries of I On the day and year above written, a writ
to wit. J of the Lord Warden issued forth of this
Court, in these words ; that is to say.
The Lord Warden [Acre copy the writ'] ; and C. D. has,
on the day of appeared by his
attorney lor in person] to the said writ, and defended for
the whole of the land therein mentioned : Therefore let a
jury be summoned, &c.
Where the defence is for part only the issue may be in
form (L.), No. 2, above.
(N.)
FOBM OF ENTBT OF VERDICT IN EJECTMENT.
Afterwards on the day of , a.d. 18
[the day for which the jury are summoned]^ come the parties
aforesaid by their respective attornies; and a jury of the
said Stannaries, being sworn to try the matters in question
between the said parties, upon their oath say, that A. B.
[the claimant] within mentioned, on the day of ,
A.D. , was, and still is, entitled to the possession of
the land [or other property as described in the writ] within
mentioned, as in the writ alleged : Therefore, &c.
[The above must be modified according to the facts and
the verdict given].
194 SCHEDITLE OT FORMS — ^WBITS.
(O.)
JUB6MXNT IN EJECTMENT ON DISCONTINUANCE.
In the Conrt [as odooe].
On the day of , 18 [date of writ'].
Stannaries of I On the day and year above written, a writ
, to wit. J of the Lord Warden issued forth of this
Court, in these words ; that is to saj,
The Lord Warden [here copy the wrif] ; and C. D. has,
on the day of , appeared bj , his
attorney [or in person]^ to the said writ, and A. B. has dis-
continued the action : Therefore it is considered that the
said C. D. be acquitted, and that he recover against the
said A. B. £ for hb cost of defence.
(p)
JUDOBfENT FOB NOT PBOCEEBINO TO TRIAL IN
EJECTMENT.
Li the Court [as above'}.
The day of , 18 [date qftDrif],
Stannaries of i On the day and year above written, a writ
, to wit. J of the Lord Warden issued forth of this
Court, in these words : that is to say.
The Lord Warden [here copy the writ] ; and C. D. has,
on the day of , appeared by his
attorney [or in person] to the said writ, and A. B. has
failed to proceed to 'trial, although duly required so to do.
Therefore it is considered that the said C. D. be acquitted,
and that he recover against the said A. B. £ for his
costs of defence.
SCHESTTLE OF FOBMS. 195
(Q)
JUDGMENT ON CONFESSION.
In the Court [as above, down to the end of the copy of the
writ, then as follows :]
And C. D. has, on the day of , appeared
bj , his attorney [or in person}, to the said writ,
and the said C. D. has confessed the said action [if it be a
confession as to part only, this must be so stated] : Therefore
it is considered that the said A. B. do recover possession of
the land [or other property"] in the said writ mentioned with
the appurtenances, and L for costs of suit.
(B.)
EXECUTION IK EJECTMENT.
1. Writ of Habere Facias, Sfc, on a Judgment by Default,
The Lord Warden of the Stannaries to my bailiffs of the
Stannaries E. F. and G. H., and to each of them, and
to all constables and peace officers within the Stannaries
greeting.
Whebeas a. B. lately in the Court of the Vice Warden
of the Stannaries by the judgment of the same Court, reco-
vered possession of [describe the property, as in the
torit of ejectment, or the part thereof recovered, as in the
judgment]: Therefore I command you, E. F. and G. H.,
and each of you, in the name of her Majesty the Queen,
and in pursuance of the statute in that case made and
provided (^a), that without delay you cause the said A. B. to
have possession of the said [land and premises] with the
appurtenances; and in what manner you shall have exe-
cuted this writ make appear to the said Court at [Truro]
immediately upon the execution hereof, and have you, or
(a) 18 Vict. c. 32. s. 15.
K 2
i
196 BCHEDTTLE OP TOBHS — WEIT8.
one of you, there then this writ ; and all constables and
peace officers are hereby enjoined and required to be aiding
the said bailiffs, if need be, within their several jurisdic-
tions, in the execution of this writ. Dated, &c.
By the Court, (l. s.)
2. Writ of Habere Facias and Fieri Facias for Costs,
The Lord Warden \as ahovcy doum to the word ^ Oreeting'*'].
Whereas A. B. lately in the Court of the Vice Warden
of the Stannaries recovered possession of [describe the pro-
perty tis in the last formj^ with the appurtenances, in an
action of ejectment at the suit of A. B. against CD.:
Therefore I command you, E. F. and G. H., and each of
you, in the name of her Majesty the Queen, and in pursu-
ance of the statute in that case made and provided, that,
without delay, you cause the said A. B. to have possession
of the said [land and premises] with the appurtenances ; and
we also COMMAND you, and each of you, that of the goods
and chattels of the said C. D. within the Stannaries of
Cornwall or Devon, you cause to be made £ , which
the said A. B. lately in the said Court recovered against
the said C. D. for the said A. B.^s costs of the said suit,
whereof the said C. D. is convicted, together with interest
upon the said sum at the rate of four pounds per centum
per annum from the day of , in the year of our Lord
, on which day the judgment aforesaid was entered
up, and have you, or one of you, that money and interest
aforesaid in the said Cotirt [at Truro"] immediately after
the execution hereof, to be rendered to the said A. B. ; and
that you do all things as by the statute passed in the
second year of the reign of her said Majesty, you are
authorized and required to do in that behalf. And in what
manner you shall have executed this writ make appear to
the said Court immediately after the execution hereof, and
have you or one of you there then this writ ; and all con-
stables and peace officers are hereby enjoined and required
SCHEDULE OF EOBMS. 197
to be aiding the said bailiffs, if need be, within their several
jurisdictions, in the execution of this writ. Dated, &c.
By the Court, (l. s.)
3. Writ of Fieri Facias for CostSy against a Defendant who
has appeared.
The Lord Warden [(as above, but addressing the bailiffs
only].
I command you, and each of you, in the name of her
Majesty the Queen, that of the goods and chattels of C. D.
within the Stannaries of Cornwall or Devon, you cause to
be made £ , which A. B. lately in the Court of the
Vice Warden of the Stannaries recovered against him, for
the said A. B/s costs of suit in an action of ejectment
brought by the said A. B. against the said C. D. in that
Court, whereof the said C. D. is convicted, together with
interest upon the said sum at the rate of four pounds per
centum per annum from the day of , in the
year of our Lord , on which day the judgment afore-
said was entered up, and have you or one of you that
money, with such interest as aforesaid, in the said Court
[at Truro] immediately after the execution hereof, to be
rendered to the said A. B. ; and that you do all things
as by the statute passed in the second year of the
reign of her said Majesty you are authorized and re-
quired to do in that behalf. And in what manner you or
either of you shall have executed this writ make appear to
the said Court immediately after the execution hereof, and
have you or one of you there then this writ. Dated, &c.
By the Court, (l. s.)
i
198 8CHEDULX or 70SKB — WBITS.
(S.)
INDORSEMENT ON A WRIT OF SUMMONS, CLAIMING AN
INJUNCTION.
The plaintiff intends to claim a writ of injunction to
restrain the defendant from [state concisely the acts sougJU to
be restrained] ; and take notice that in default of the de-
fendants entering an appearance, as within commanded, the
plaintiff may, besides proceeding to judgment and execution
for damages and costs, apply for and obtain such writ.
SOHEDrLE OF FSES. 199
TABLE OF FEES OF COURT AND OFFICERS,
PEOCEEDINGS BY WEIT.
Writ of Summons or Revivor - - -
Ccncurrent or renewed writ . - -
Writ of Ejectment - . - .
Appearance for one defendant, or on a joint defence
of several - . - •
Far each separate appearance after the first
For filing declaration, plea, replication, or demurrer
For filing any subsequent pleading
For filing a suggestion - -
For filing an affidavit, including exhibits
Same for each deponent beyond two in a single
affidavit - - - - -
Search for appearance or pleadings
Writ of Subpoena (with or without a duces tecum)
for four persons only - - -
Same to attend before Registrar or commissioner -
Commission to examine a party or witness
Special rule or order of Vice Warden
Rule or order of course - . - -
Registrar's order - - - .
Writ of Injunction - . - -
Judgment by default - - - -
Final judgment other than judgment by default
Any writ of execution or of attachment
Concurrent or renewed writ oifi,fa, or ca, sa.
Registrar's certificate to a superior Court -
Any other certificate, except on a reference to
Registrar - - - - - 1
s.
d.
a
2
5
3
1
5
2
6
1
1
6
1
2
1
5
5
2
6
2
2
6
2
6
5
5
2
6
2
6
200 SOHBDrLB OF PEES — ^WEITS.
Registrar's report on a reference, 6d, per folio of
72 words.
Summons to attend the Vice Warden
Same to attend the Registrar
Registrar's order - - -
Order of Registrar, or on trial to amend
Registrar for swearing affidavit
Office copies, 4d. per folio of 72 words.
Taxation of bill of costs, not exceeding 3 folios
Same if exceeding 3 folios
Entering cause for trial - -
Payment of money into Court, under £50 -
*» £50 and under £100 -
" £100 and upwards
Special case from each party
Warrant of Committal - - -
Interpleader Summons - - -
Entry of discontinuance or retraxit
Every juror sworn in a cause
Same for every day, after the first, that the trial
continues - - - - - 1
Commissioner for swearing affidavit, including ex-
hibits - - - - - 2
Copy of Vice Warden's notes on an appeal - 5
N.B. Only one fee is to be paid by plaintiff or defendant
though several pleas, replications, or subsequent pleadings
may be filed by him at the same time. But for a demurrer
a separate fee must be always paid.
Bailiff's Fees.
For service of a writ, or other service - - 5
For service by the same bailiff on several defend-
ants in the same writ, residing five miles or
more apart ; for each defendant • - 3 6
For executing^. /a., ca. «a., or writ of possession - 10
For executing a writ of attachment - - 10
s.
d.
2
6
1
2
1
1
2
3
1
2
6
3
4
5
5
2
2
1
SCHEDULE OF FEES. 201
For every day after the first, while necessarily en- s. d,
gaged in executing any of the above writs - 5
For every mile beyond three miles (reckoning one
way only) which he has to travel in serving
or executing any process or writ - - 1
If, in executing final process, the bailifi* shall be neces-
sarily put to any extra expense for the benefit, and at the
instance, of the party against whom the writ is issued, the
Registrar may allow such expense at his discretion.
The bailifTs are not entitled to poundage on execution.
Ushee's oe Cbi£B*s Fees.
On calling on any cause for trial, hearing, or argu-
ment - - - - - -26
For every day after the first while the trial shall last 1
On the swearing of every witness - - -10
For every motion made before the Vice Warden - 1
Edward Smirke, Vice Warden.
K 3
QEITEBAL BTTLEB. 203
RULES, ORDERS, AND REGULATIONS
FOE THE CONDUCT OP BUSINESS IN THE OPFICB OP THE
BEGISTBAB, AND POB OTHEB MATTEBS APPUCABLE TO
THE COUBT GENEEALLT.
The Vice Warden of the Stannaries, with the consent and
approval of the Right Honourable Sir George James Turner,
one of the Lords Justices of the Court of Appeal in Chan-
cery, and of the Honourable Sir William Erie, Knight,
one of her Majesty*s Justices assigned to hold pleas before
the Queen herself, and in pursuance and execution of the
statute in that case made and provided, and of all other
powers enabling him in that behalf, doth hereby obdeb and
DiBECT that upon and after the publication thereof, the
following Rules, Orders, and Regulations shall be in force.
1. The hours of ordinary attendance at the Registrar's
office shall be from 10 o'clock, a.m., until 2 o'clock, p.m.,
except on Easter Eve, Monday and Tuesday in Easter week,
the three days next following Christmas Day, and the
Queen's birth-day, on which days attendance will not be
required for more than one hour during the day, to be
notified on a paper fixed at the outer door of the ofilce
on the same and the preceding day.
For seven days next before the first day of sittings, and
during the whole of such sittings, the attendance shall be
until 6 o'clock, p.m., and so much longer as the Court shall
be sitting on each day.
204 GEKEEAL BI7LE9.
On the dajs specified in sect. 17 of the Act 6 & 7 Wm. 4.
c. 106. the office shall be closed.
When the business of the office is pressing, the Registrar
may require attendance at the office beyond the hours of
ordinary attendance, specified above in this Order.
The secretary is also to be in attendance, in person or
otherwise, at his own office, or at the Registrar's office, or
at some known place of business in the town in which the
Court usually sits, during the same days and times above
specified.
2. All acts, entries, or applications, in any cause or matter
to be done or made by suitors or their solicitors or attomies,
or other persons, at the office of the Registrar, must be done
or made during office hours ; but the officers of the Court
are at liberty to permit such acts to be done, or to give their
voluntary attendance for the accommodation of suitors at
other hours, if not to the prejudice of other parties to a suit.
3. All correspondence with, and ordinary applications to,
the Vice Warden, on matters touching the Court or the
business thereof, are to be addressed or made to him through
the secretary.
4. The Registrar at Truro is to have the sole control of
the office, and of the other officers, clerks, or attendants
there, and is to arrange and distribute the business pending
therein, subject to the directions of the Vice Warden.
5. The library, consisting of the books deposited there by
the gift of the late Vice Warden, John Lucius Dampier, Esq.,
and of John Ennis Vivian, Esq., M.P., and such other books
or documents as may hereafter be deposited therein, shall
be carefully preserved for the use and benefit of the Vice
Warden and officers of the Court for the time being, and
of all suitors and professional gentlemen practising therein,
and are to be open for such use during office hours ; but
are not to be removed out of the office without the express
authority of the Vice Warden.
GEHTEBAL BULES. 205
6. The acts and records of the Court are to be safely kept
in an orderly manner, and so arranged that feach series or
class may be readily distinguished and accessible in case of
search ; and the names of all causes are to be preserved in
books of reference.
7. All the acts and records of the Court, in suits and
actions, are to be on paper ; and the expense of parchment
will not be allowed in any bill of costs, except in the case
of writs of execution and of attachment, commitments to
prison, and orders in the nature of habeas corpus.
8. In order to make the proceedings in the Court con-
venient for transmission, if need be, and more easily arranged
lor reference or search, the officers of the Court shall endea-
vour, as much as in them lies, to cause paper of uniform
size and form to be used in all proceedings in the Court,
selecting the size and form that shall be also convenient for
general use. For this purpose, instruments such as peti-
tions, answers, declarations, pleadings, reports, decrees, and
records of judgments, may be written book wise, on folded
paper, similar to that now generally used for affidavits.
Plaints, summonses, writs of summons, execution, and attach-
ment, injunctions, commitments, rules, and like instruments,
whether on paper or parchment, may be in the form now
used in the Court, with such variation only as may distinguish
each class of instrument on a search for them in the office.
9. All fees and monies payable at the Registrar's office
shall be received by himself in person, or by such person as
he shall name or authorize for that purpose, either generally
or pro hdc vice,
10. Attornies and solicitors practising, or desirous of
practising in the Court, may be called upon to entitle
themselves so to practise by signing a roll or book kept for
that purpose by the Court, in pursuance of section 27 of the
Act 6 & 7 Vict. c. 73. ; but no fee shall be demanded or
paid upon signing such roll.
11. A list of commissioners, authorized to take affidavits
206 GEITEBAL BULES.
in suits or other matters pending in the Court, shall be kept
in the office for the free inspection of suitors, distiuguishing
whether their authority extends to the common law or
equity side, pr to both, or to all matters indifferentljr.
12. The seal of the Court, referred to in sect. 19 of 6 & 7
Wm. 4. c. 106., may be impressed by a stamp on the paper
or parchment, and no wax need be used ; and the seal shall
be so impressed as to be clearly distinguishable, especially
in writs or instruments for use, service, or execution out of
the ordinary jurisdiction of the Court.
13. At or before the commencement of each sittings, the
Vice Warden may, if he thinks fit, name the latest day of
the sittings on which any rule or order to shew cause at
those sittings may be moved for.
Edwabd Smirk£, Vice Warden.
APPENDIX OF STATUTES.
Statutes and Extracts from Statutes relating to the
Stannary Jurisdiction, or applicable to it.
TABLE OF STATUTES.
4 & 5 Wm. 4. cap. 42. (Affidavits) - - 208
6 & 7 Wm. 4. cap. 106. (Administration of Justice in
the Stannaries) ----- 209
1 & 2 Vict. cap. 110. (Mesne process and execution) 230
2 & 3 Vict. cap. 58. (Administration of Justice in
the Stannaries) ... - 233
7 &8 Vict. cap. 19. (Bailiffs of Inferior courts) - 237
7 & 8 Vict. cap. 65. (Court and official buildings at
Truro) - - - - - 239
7 & 8 Vict. cap. 96. (Execution in Inferior courts) 241
7 & 8 Vict. cap. 105. (Mining in the Duchy Asses-
sionable manors) - _ . - 243
7 & 8 Vict. cap. 110. (Joint Stock Companies Act) 253
11 & 12 Vict. cap. 83. (Administration of Justice in
the Stannaries) - - - - 254
12 & 13 Vict. cap. 108. (Joint Stock Companies
Winding up) ----- 258
18 & 19 Vict. cap. 32. (Extension of the Jurisdiction
of the Stannary Court) - - -260
208 Appendix of Statutes.
Act 4 & 5 Wm. 4. cap. 42.
An Act to facilitate the taking of Affidavits and Affirmations
in the Court of the Vice Warden of the Stannaries of
Cornwall. [30th July, 1834].
Wheeeas suitors and others having business in the Courts
of the Stannaries, held by the Vice Warden of the said
Stannaries, can make affidavits or affirmations relating
thereto before the Vice Warden only ; and that it is expe-
dient and will be for the benefit of such suitors and others,
that other persons as well as the said Vice Warden have
authority to take such affidavits or affirmations: Be it
therefore enacted by the King's most excellent Majesty, by
and with the advice and consent of the lords spiritual and
temporal, and commons, in this present Parliament assem-
bled, and by the authority of the same,
That any commissioner of any of the superior Courts of
common law at Westminster, having by commission from
such Courts, or any of them, authority to take affidavits in
matters relating to such Courts or any of them, may, with-
out fee or reward, apply for and have, by commission from
the said Vice Warden under the seal of the Stannaries
kept by him, authority to take affidavits or affirmations in
all suits and matters relating thereto brought into the
Court of the said Vice Warden by way of appeal from the
Courts of the stewards of the said Stannaries ; and that any
master extraordinary of his Majesty's High Court of Chan-
cery may, without fee or reward, apply for and have, by
like commission from the said Vice Warden, authority to
take affidavits or affirmations in all other suits, petitions, or
matters to be commenced or being in the Court of the said
Vice Warden ; and that all and everjr person and persons
wilfully swearing or affirming falsely in any affidavit to be
made before any person so authorized to take affidavits or
affirmations as aforesaid, shall be deemed guilty of perjury,
and be liable to the penalties of perjury, and be therefore
prosecuted in anjr Court of competent jurisdiction.
II. [This section provides that the act shall commence
1st October, 1834].
Statute QSfl Wm. 4. c, 106. 209
III. [Declares the act to be a public act (a)].
Act 6 & 7 Wm. 4. cap. 106.
An Act to make Provision for the tetter and more expeditious
Administration of Justice in the Stannaries of Cornwall^
and for the eidarging the Jurisdiction and improving the
Practice and Proceedings in the Courts of the said Stan^
naries. [20th August, 1836].
Whereas there has existed throughout the Stannaries of
Cornwall a Court in which the Vice Warden has in certain
cases, wherein tin or tinners or matters connected with tin
are concerned, exercised original equitable jurisdiction :
And whereas there has existed a Court in each of the
Stannaries of Cornwall called the Steward's Court, and in
which the steward of the Stannaries has exercised a com-
mon law jurisdiction in such like cases: And whereas the
jurisdiction so exercised by the Vice Warden and the
steward respectively has been confined to cases wherein tin
or tinners are concerned : And whereas in late times lead,
copper, and other metals and metallic minerals than tin
have been discovered in the county of Cornwall, and over
the matters connected with the working for and purifying
and smelting of which lead, copper, and other metals and
metallic minerals such jurisdiction has not been considered
to extend: And whereas the various persons in the said
county working and interested in such lead, copper, and
other metals and metallic minerals, are greatly mconve-
nienced in their disputes in cases where such metals and
metallic minerals other than tin are concerned, and are put
to great inconvenience in obtaining redress therein: And
whereas it is expedient to unite the Court of Equity of the
Vice Warden with the Courts of Common law of the steward
of the said Stannaries, and to extend the jurisdiction of the
Court to and over all metals and metallic minerals in the
said Stannaries, and to and over all transactions connected
therewith in the said county of Cornwall, in manner herein-
(a) This act was passed at a time when the Court of the Vice
Warden was a Court of appeal from the Steward's Courts of com-
mon law, aud of original jurisdiction only in equity. See further
sect. 6 of 2 & 3 Vict. cap. 58., p. 235.
210 Appendix of Statutes.
after mentioned, and also to confirm, alter, and enlarge the
powers of such Court in various particulars, and to make
other provision than heretofore for the hearing of appeals
and writs of error therefrom : Be it therefore enacted by
the King's most excellent Majesty, by and with the advice
and consent of the lords spiritual and temporal and com-
mons in this present Parliament assembled, and by the
authority of the same, that from and after the death or
resignation or other removal of the present Vice Warden it
shall and may be lawful for the Duke of Cornwall for the
time being, if of full age, or his Majesty and his successors,
King or Queen regnant of England for the time being, if
there be no Duke of Cornwall or if the Duke of Cornwall
for the time being is under age, to nominate and appoint
from time to time (by letters patent under the privy seal of
the Duchy of Cornwall, or under the great seal of England,
as the case may be,) a fit person, being a barrister at law
of fiveyears standing at the least, to be and be called the
Vice Warden of the Stannaries.
II. And be it further enacted. That the present Vice
Warden and every future Vice Warden shall be judge of
the Court hereinafter mentioned, and which shall have both
a common law and an equity side, and shall comprehend
the Court heretofore the Court of the Vice Warden and the
Court heretofore the Courts of the Stannaries, and that the
Vice Warden for the time being shall hold such office
during his good behaviour: Provided always, that it shall
and may be lawful for the Duke of Cornwall for the time
being, if of ftiU age, or his Majesty and his successors. King
or Queen regnant of England for the time being, if there is
no Duke of Cornwall, or if the Duke of Cornwall for the
time being be under age, on a requisition to him for that
purpose, stating therein at length sufficient pounds, and
signed by the majority or five of the council, or of the
commissioners or principsd officers of the Duchy of Cornwall,
but not otherwise (the Lord Warden of the Stannaries
being always one of the persons signing such requisition),
to remove the person for the time being holdmg the said
office of Vice Warden.
III. [Provision for the appointment of Vice Warden in
case of a vacancy during the time that the then Lord
Warden. Expired].
^ IV. And be it further declared and enacted. That the ori-
ginal equitable jurisdiction heretofore lawfully exeroised by
the Vice Warden for the time being shall and may be hence-
Statute 6^7 Wm. 4. c. 106. 211
forth exercised by the present and every future Vice Warden
for the time being, and that the present and every future Vice
Warden for the time being shall have, exercise, and enjoy
the same equitable jurisdiction, and the same power and
authority in all matters and things brought before him, so
far as relates to the working, managing, conducting, or
carrying on any mine worked for any lead, copper, or other
metal or metallic mineral within the said county of Corn-
wall, or to the searching for, working, smelting, or purifjring
any lead, copper, or other metal or metallic mineral within
the said county, in as full and ample a manner as if the
same had related to any tin or tin ore, or tin mine, or mine
worked for tin, in the said county : Provided always, that
nothing herein contained shall be deemed or taken to affect
any suit or matter now pending in any Court of law or
equity.
V. [Provides for appeals in equity to the Lord Warden.
Repealed by Act 18 Vict. c. 32].
VI. And be it further enacted. That the Courts of law
of the respective Stannaries heretofore held before the
stewards or steward thereof shall be one Court for all the
Stannaries, and shall be held by and before the Vice
Warden for the time being, who as Judge thereof shall
have, exercise, and enjoy the same common law jurisdiction,
and the same powers, privileges, and authorities with refer-
ence thereto, and shall transact, do, and perform the same
duties, matters, and things in relation thereto, as have here-
tofore been lawfully transacted, done, performed, or to be (a)
exercised or enjoyed by the steward for the time being of
any of the Stannaries.
VII. And be it further enacted. That such Vice Warden
for the time being shaU also have, exercise, and enjoy the
same common law jurisdiction and the same power and
authority in all matters and things which shall be brought
before him in any way connected with the working, manag-
ing, conducting, or carrying on any mine worked for lead,
copper, or any other metal or metallic mineral within the
said county of Cornwall, or in any way relating to lead,
copper, or any other metal or metallic mineral, or the
searching for, working, smelting, or purifying lead, copper,
or any other metal or metallic mineral within the said
county, in as full and ample a manner as if the same had
(a) Instead of " to he" the word " Uen ** was perhaps meant to
be inserted here 1
212 Appendix of Statutes,
been connected with or related to any tin or tin ore, or tm
mine, or mine worked for tin, in the said county. [Proviso
for appeal to the Lord Warden. Repealed by Act 18 Vict,
c. 321.
Vni. And be it further enacted, That any party to any
action at law brought in the said Court may apply for a new
trial in any such action to the Vice Warden within eight
days after the trial of such cause, if the said Vice Warden
shall be then sitting, or within the first four days of the
next term, and the said Vice Warden may grant a new trial
upon any of the grounds on which new trials are now
granted by the Courts at Westminster, and upon such
terms and conditions as by the said Vice Warden shall be
thought reasonable ; and the said Vice Warden, if he shall
think that an impartial trial cannot be had in Cornwall,
may direct that the [Nisi Prills'] record in any cause shall
be sent to the Judges of assize for the county of Devon,
who shall have authority to try such cause, and after the
trial to cause such record to be transmitted to the Court of
the Vice Warden, who shall proceed on the said record as if
the cause had been tried in his own Court : Provided always,
that the orders of the said Vice Warden upon such appli-
cation for a new trial shall be subject to such appeal as
hereinbefore provided as to other decrees, orders, and acts
of the said Vice Warden (a).
IX. And be it enacted. That the service of every writ of
subpoena to attend and give evidence hereafter to be issued
out of either side of the said Court of the Vice Warden,
and served upon any person in any part of England or
Wales, shall be as valid and effectual in law, and shall
entitle the party suing out the same to all and the like
remedies by action or otherwise howsoever, as if the same
had been served within the jurisdiction of the said Court of
the Vice Warden ; and that in case the person so served
shall not appear according to the exigency of such writ, it
shall be lawful for the said Court of the said Vice Warden,
upon path or affirmation to be taken in open Court, or
(a) So much of this as regulates the time of moving for a new
trial is repealed by sect. 5 of Act 2 & 3 Viet. c. 58. The words
" Nisi Prius '* are expunged by sect. 30 of 18 Vict. c. 32., as inappli-
cable to the Court. The words " next term " are also inapplicable,
unless understood to mean *' next sitting/* for there is no vacation.
See foit, sect. 17.
Statute 6^7 Wm. 4. c. 106. 213
affidavit, of the personal service of such writ, to transmit a
certificate of such default under the seal of the said Court
to the Court of King's Bench at Westminster ; and the
said last mentioned Court may and shall thereupon proceed
against and punish by attachment or otherwise, according
to the course and practice of the same Court, the person so
having made default, in such and the like manner as the
same Court might have done if such person had neglected
or refused to appear in obedience to a writ of subpoena
issued to compel the attendance of witnesses out of such
last mentioned Court.
X. Provided always, and be it further enacted. That the
said Court of King's Bench shall not in any such case as
aforesaid proceed against or punish any person, nor shall
any such person be liable to any action for having made
default by not appearing to give evidence in obedience to
any such writ of subpoena as aforesaid for that purpose
issued under the authority of this Act, unless it shall be
made to appear to the said Court of King's Bench that
a reasonable and sufficient sum of money to defray the
expences of coming and attending to give evidence, and of
returning from givmg such evidence, had been tendered to
such person at the time when such writ of subpoena was
served upon such person.
XI. [Provision for executing judgments of the Court by
the superior Courts in case of removal out of the jurisdic-
tion. Repealed by sect. 30 of Act 18 Vict. c. 32, and
replaced by other provisions].
All. And be it further enacted. That in case any rule of
the said Court of the Vice Warden cannot be enforced by
reason of the non-residence of any party or parties within
the jurisdiction thereof, it shall be lawful, upon a certificate
of such rule by the Registrar, under the seal of the said
Court of the said Vice Warden, and an affidavit that by
reason of such non-residence such rule cannot be enforced,
to make such rule a rule of any one of the said Courts at
Westminster, if such superior Court shall think fit, and that
thereupon such rule shall be enforced as a rule of such
superior Court (a).
(a) This clause is similar to one in the Act for improviog the
practice of the Coromon Pleas of the Palatinate of Lancaster
(4 & 6 Wm. 4.C. 62. s. 32.), and of the Court of Pleas of the
Palatinate of Durham and Sadberge (2 & 3 Vict. c. 16. s. 29).
214 Appendix of Statutes,
XIII. And be it further eDacted, That neither the "Vice
AVarden for the time being, nor the Court of such Vice
Warden, shall have, use, or exercise any power or authority
save as hereby^ provided, [and that any person against
whom proceedings shall be instituted in the Court of the
Vice Warden shall, after the appearance entered, be at
liberty to demur or plead to the jurisdiction of the said
Court ; but that no question as to the jurisdiction of the
said Court with respect to the matters embraced in such
proceedings shall hereafter be raised unless such person
shall within fourteen days after appearance entered by or
on behalf of himself, or entered by the person instituting
such proceedings in manner hereby provided, demur or
plead to such proceedings by filing a statement of the
grounds of such demurrer or plea at the Registrar's office,
and serving a copy thereof on the person instituting such
proceedings, or his solicitor or attorney (a) ].
XIV. [Vice Warden empoweried to make rules and
orders touching the practice and proceedings of the Court,
repealed by 18 Vict. c. 32. (6) ].
It does not appear to be necessary to show that the party, od whom
the order was made, was then resident within the jurisdiction and
has since removed from it, if the Vice Warden's Court had
cognizance of the cause.
(a) So much of this section as relates to pleas and demurrers to
the jurisdiction (being the part in brackets) is repealed by sect. 18
of Act 18 Vict. c. 32. As the defendant at common law has no
adequate information to enable him to consider the question of juris-
diction until a declaration, or something of the same nature, has
been delivered, it was ruled in the Vice Warden's Court that this
clause only applied to petitions in equity. Hence the mode of
objecting to the jurisdiction was regulated by rule of Court on the
common law si^te.
(5) The power was to be exercised subject to the approval of the
Lord Chancellor or a judge of the superior Courts. By sect. 5
of 2 & 3 Vict. c. 58., a power is conferred to make rules and orders
relating to new trials, rehearings, and matters, relating to the
taxation of costs and practice as to the Vice Warden may seem fit,
anything in such Act*' (i.e. the Act 6 & 7 Wm. 4. c. 106.) ** to the
contrary notwithstanding." This last provision has been construed
Statute 6^7 Wm. 4. c, 106. 215
XV. And be it further enacted, That the Vice Warden
for the time being shall in all cases in equity brought before
him, whether by bill, petition, or otherwise, have power
and authority to take the whole or any part of the evidence
therein either viva voce on oath or affirmation before him-
self or before the Registrar, or before persons duly autho-
rized by him for administering oaths and taking affidavits,
or on depositions taken before the Registrar or commis-
sioners appointed for that purpose, or otherwise as the Vice
Warden may from time to time direct by any general rule
to be made by virtue of this Act : Provided always, that the
said Vice Warden for the time being may, on interlocutory
matters, and in such other cases as to him shall seem desir-
able, receive evidence either in whole or in part on affidavits,
and that either with or without further evidence viva voce^
or on depositions : Provided nevertheless, that the practice
heretofore adopted as to taking evidence in the Court of
the Vice Warden and of the Steward's Courts shall never-
theless in the meanwhile continue in each and every case
until the same shall be altered by virtue hereof or of the
powers herein contained (a),
XVI. And be it further enacted. That it shall and may
be lawful for the Vice Warden to direct an issue of any fact
arising befpre him in any suit instituted by bill, petition, or
otherwise on the equity side of the said Court, to be tried
by a jury, and to issue process to compel the attendance of
to release the Vice Warden from the obligation of obtaining the
approval of a Chancery or common law judge in matters of costs
and of practice. If this construction be correct, the power is un-
touched by the Act 18 Vict. c. 32. s. 23. under which general
rules and orders touching ** all the business'* of the Court may now
be made.
(a) The clause, down to the second proviso apparently relates
only to causes in equity. The proceeding by " bill" and answer on
oath has never been in use in the Court.
At the time of passing this Act the power of issuing general com-
missions to administer oaths and take aflSdavits was dependent on
the Act 4 & 5 Wm. 4. c. 42. (ante, p. 204). It was afterwards
enlarged by sect. 6 of 2 & 3 Vict. c. 58., see post, p. 231 and the
note ibid. The powers of the Registrar are also enlarged in the last
mentioned Act.
216 Appendix of Statutes.
jurors and witnesses for that purpose, and that the Vice
Warden shall have all necessary powers for trying the
same and carrying the verdict thereof into execution ; and
that, after any such issue shall be tried, a new trial may be
moved before the Vice Warden for the time being, who
shall have power to grant or refuse such new trial according
to the rules of the common law and practice of the Courts
of Westminster in granting or refusing new trials (a).
XVn. And be it further enacted, That it shall and may
be lawful for the Vice Warden for the time being, whether
he be at the time in the county of Cornwall or otherwise, in
all cases which may be brought before him, whether in the
said county of Cornwall or otherwise, over which cases he
has jurisdiction, to make such order by way of injunction
or otherwise as the nature of the case may require, notwith-
standing he may have adjourned hjs Court to some future
time or some other place (h) ; and that for the entry of plead-
ings, orders, proclamations, and other matters touching the
practice of the Court in process and execution the said
Court shall be considered, and be, at all times open ; pro-
vided that nothing be therein done on any Sunday, Christmas
Day, Grood Friday, or any day appointed for a public fast
or thanksgiving.
XVIII. And be it further enacted. That in case the Vice
Warden shall in any proceedings instituted for that purpose
make any decree or decretal order against any person for
the payment of any money due or payable in respect of the
working or management of or the providing goods for any
mine worked for any metal or metallic mineral, and the
person against whom such order or decretal order shall be
made, or any person in trust for him, shall have any share
or interest in such mine, and shall not pay the sum so
decreed to be paid, it shall and may be lawful for the Vice
(a) As all juries were, under this Act, juries of t*velve jurors, the
trial of issues must be taken to refer to such a jury.
(Jb) It is by virtue of this clause, and (it is believed) of the pre-
vious usage, that the Vice Warden makes orders when not within
the Stannaries; but where the order must be upon hearing or
argument, it is not the practice to make such orders except by
consent, or on the voluntary attendance of the parties or their agents
before him. No power existed under this Act of " adjourning
the Court to any place*' other than Truro. See pott, sect. 21.
Statute ^Sfl Wm. 4. c, 106. 217
Warden, under such regulations and in such w^y as to him
shall seem fit, to cause a sale of such share or interest, or of
so much thereof as shall be necessary to raise such sum and
the costs attending such sale (a).
XIX. And be it further enacted, That the seal of the
Stannaries heretofore used by and considered as the seal of
the Vice Warden for the time being shall be and be deemed
and taken to be the seal of the Court of the Vice Warden,
and that every process issuing from either the equity or
common law side of the said Court shall issue under such
seal ; and that all orders, proceedings, documents, and copies
by the laws of the Stannaries as now existing, or by the act
or by amr rule or order of either side of the said Court, or
of the Vice Warden as judge of the said Court, as shall be
required to be sealed, shall be sealed therewith.
XX. And be it further enacted, That all barristers at
law and all attornies and solicitors of any of the superior
Courts of law or equity at Westminster may appear and
plead in any proceedings in the said Court of the Vice
Warden ; and m case any person, not being an attorney or
solicitor of such superior Courts, shall practise in the said
Court of the Vice Warden as attorney or solicitor, he shall
be deemed guilty of a c<mterapt of the said Court, and be
liable to all the penalties incident thereto, on complaint
thereof made to the said Court ; and that all the laws and
statutes now in force concerning attornies or solicitors
shall, so far as the same are applicable, extend to attornies
or solicitors practising in the said Court of the said Vice
Warden (Jb).
XXI. And be it further enacted, That the Court of the
Vice Warden shall have jurisdiction throughout the county
(a) This clause was apparently intended to coDfirm the previous
usage of decreeing a sale of shares in a purser's suit against adven-
turers for contribution to costs, which had been occasionally dis-
puted. The old practice is declared in the Stannary Convocation,
Law 11 (Tregoning*s ed. p. 101), and is the basis of the present
procedure in the Stannaries against shareholders in arrear. The
clause does not seera to apply to the sale of machinery on the petition
of creditors.
(fr) The statutes in force at the passing of this act concerning
attornies, &c., have been since repealed, but the last Act, 6 & 7
Vict. c. 73., applies to all Count of civil jurisdiction.
L
218 Appendix of Statutes,
of Cornwall, and be held at Truro in the said county, and
shall be a Court of record, and shall have within the limits
of its jurisdiction all the powers, rights, privileges, and inci-
dents of a Court of record as fully and amply to all intents
and purposes as the same are used or exercised or enjoyed
by any of his Majesty's Courts of law at Westminster ; and
that the Vice Warden for the time being shall have, use,
exercise, and enjoy all the powers, rights, privileges, and
exemptions of a Court of record ; and that the sitting of the
said Court shall be held as often as shall be found neces-
sary, and at least once in every three calendar months, on
such days as the Vice Warden shall from time to time
appoint (a).
XXIL And be it further enacted, That it shall and may
be lawful for the Duke of Cornwall for the time being, or
for his Majesty, his heirs and successors. King or Queen
regnant of England for the time being, in case there shall
be no Duke of Cornwall or the Duke of Cornwall for the
time being shall be under age, by letters patent under the
privy seal of the Duchy of Cornwall or under the great
seal of England, as the case may be, from time to time to
appoint a fit and proper person, being a barrister at law or
a solicitor or attorney of one of the superior Courts at West-
minster, to be and act as the Registrar of the said Court of
the Vice Warden, and to attend upon and assist the said
Vice Warden in his said Court, whether sitting as a Court
of law or equity, and to enter and draw up all orders,
decrees, sentences, and judgments of all kinds made and
pronounced by him, and to take such accounts and to ex-
ecute such references as the said Vice Warden shall direct ;
and that the person so appointed as Registrar shall hold his
office during his good behaviour : Provided always, that it
shall and may be lawful for the Duke of Cornwall for the
time being, if of full age, or his Majesty, his heirs and suc-
cessors. King or Queen Regnant of England for the time
being, if there be no Duke of Cornwall or if the Duke of
Cornwall for the time being be under age, on a requisition
to him for that purpose, stating therein sufficient grounds,
and signed by the Vice Warden for the time being and by
five or more of the council or of the commissioners or of
the principal officers of the Duchy, but not otherwise, to
(a) See, as to the time of sitting and alteration thereof, sect. 24
of 18 Vict.c. 32., /»w»t.
Statute 6^7 Wm. 4. c, 106. 219
remove the person for the time being holding the said office
of Registrar.
XXIII. [Provides for the appointment of Registrar in
case of a vacancy while the then Lord Warden held office.]
XXIV. And be it further enacted, That it shall and may
be lawful for the Vice Warden for the time being to appoint
by writing under the seal of his Court a fit and proper
person to be and act as his secretary, and also in like manner
to appoint one other fit and proper person to be and act as
prothonotary or assistant Registrar (a) in the said Court, and
also in like manner to apjjoint one other fit and proper
person (who shall enter into such security as the Vice
Warden for the time being shall think fit) as collector for the
said Court.
XXV. And whereas it is expedient that the Vice Warden
for the time being, and the Registrar, and the other before
mentioned officers of his Court, should be paid by fixed
salaries, and that all fees received by such Registrar and the
other officers aforesaid for business done in the Court
should be accounted for in manner hereinafter mentioned :
And whereas his Majesty has been graciously pleased to
direct that one moiety or half part of the salaries of the
Vice Warden and of the before mentioned officers of his
Court should be paid out of, and be a charge upon, the
revenues of the Duchy, subject nevertheless to be in part
indemnified by contribution of part of such fees so to be
accounted for as aforesaid : And whereas it is expedient
that for the purpose of raising money sufficient, with the
remaining portion of such Court fees, to pay the other
moiety or half part of the aforesaid salaries of the said Vice
Warden and the aforesaid officers of his Court, a small
assessment should be made on all metals and metallic
minerals (except tin ore) (h) (over all matters connected
with which the jurisdiction of such Court is hereby extended
as aforesaid), and which shall be from time to time brought
to sale in or withdrawn from any mine in the said county of
Cornwall : — Be it therefore enacted, That there shall be paid
(a) The office of prothonotary (called elsewhere deputy Regis-
trar, sect. 27) will hereafter undergo modification. See act 1 1 & 12
Vict c. 83. sect. !1, pust.
(6) The exception of tin ore was abolished by 2 & 3 Vict, c 58.
sect. 1.
I. 2
220 Appendix of Statutes,
and payable, in the manner hereinafter mentioned, the
yearly sums following as and for the salaries to the Vice
Warden and the before mentioned officers of his said Court
for the time being, videlicet, to the Vice Warden the sum
of one thousand five hundred pounds, to the Registrar the
sum of five hundred pounds, to the person who shall be so
appointed the secretary to the Vice Warden the sum of one
hundred pounds, to the prothonotary or assistant Registrar
the sum of two hundred pounds, and to the collector the
sum of thirty pounds ;(a) which said several sums shall be
paid from time to time half-yearly in manner hereby
provided, free and clear from all taxes and deductions
whatsoever, on the twenty-fifth day of March and on the
twenty-ninth day of September in each year, by equal
portions, the first of such respective portions to be paid on
the twenty-fifth day of March next ; and that if any person
at any time holding any of the said offices shall die, resign,
or be removed from the same, the executor or administrator
of the person so dying, or the person so resigning or being
removed, shall be entitled to have such proportionate part
of his salary as shall have accrued during the time that such
person shall have held his office since the last payment;
and that the successor of any such person so dpring, resigning,
or being removed as aforesaid shall be entitled to receive
such portion of his salary as shall be accruing or shall accrue
from the day of such death, resignation, or removal.
XXVI. And be it further enacted, That a moiety or half
part of the aforesaid salaries to the Vice W^arden for the
time being and to the aforesaid officers of his said Court
shall be a charge on the revenues of the Duchy of Cornwall,
and that the same shall be paid by the receiver general for
the time being of the said duchy under debentures for that
purpose from the auditor for the time being of the said
duchy, in [and ?] which the said auditor is hereby authorized
to issue ; and that the said receiver general shall, on the
twenty -fifth of March and twenty-ninth of September in
each year, under the debentures so issued, pay, free from
all deductions, the sums following, videlicet, to the Vicp
W^arden for the time being the sum of three hundred and
seventy-five pounds, to the Registrar the sum of one hundred
and twenty-nve pounds, to the person so appointed secretary
to the Vice Warden the sum of twenty-nve pounds, to the
(a) Increased to 40/. by 2 & 3 Vict. c. 58. s. 1.
Statute 6^7 Wm, 4. c. 106. 221
prothonotary or assistant Registrar the sum of fifty pounds*
and to the collector the sura of seven pounds ten sniilings.
XXVIL And be it further enacted, That the person so
as aforesaid appointed secretary to the Vice Warden, and
the said prothonotary or deputy Registrar, and the said
collector(a), shall once in every half year account for and
pay over to the Registrar for the time being of such Court
all fees received by them by virtue of their respective
appointments during the previous half year ; and that the
Registrar for the time being shall forthwith make out a full
and true account of all fees received by him during such
preceding half year, and of all fees received by the aforesaid
officers of the said Court, and accounted for and paid to
him as aforesaid, for the same period; and that such
Registrar shall have such account audited by the said Vice
Warden for the time being, in which account and audit
there may and shall be charged and allowed such small
sums of money as to the Vice Warden shall seem reasonable
for the keeping order in, and the lighting, airing, and
cleansing the place in which such Court shall be held(5),
and shall transmit a copy of such account so audited to the
auditor for the time being of the said duchy, and shall pay
or cause to be paid to the said receiver or his deputy one
third part of the total amount of fees so appearing to have
come to the hands of such Registrar, for which sum so paid
the receiver shall on passing his accounts give credit to the
duchy in part discharge of the moiety of the salaries so as
aforesaid charged on the revenues of the said duchy.
XXVin. And be it further enacted, That there shall
be paid and payable the sum of one farthing in the pound
sterling on the value of all metals and metallic minerals (c)
which shall be from time to time brought to sale in or with-
drawn from any mine within the said county of Cornwall ;
and that the head manager of every mine in the said county
of Cornwall shall, within ten days after each quarterly
account of the mine over which he is head manager shall
have been or ought to have been made up, transmit to the
registrar for the tinie being of the Vice Warden's Courts
(a) The collector receives no fees under any existing provision.
(6) The nature and extent of these allowances are now specified
and defined by sect. 25 of act 18 Vict. c. 32.
(c) la the original, '*tin and tin ore** are excepted throughout.
These words are here omitted.
222 Appendix of Statuteg,
a full, true and particular account and return of all metals
and metallic minerals which shall have been brought to sale
in, or shall have been withdrawn from, the mine of which he
is such head manager during the preceding quarter, and
shall, in such return, state the value in money of the respec-
tive quantities of the metals and metallic minerals specified
therem at the time the same were respectively brought to
sale or withdrawn, as the case may be ; and that the head
manager of every such mine shall, on application from the
collector of the Vice Warden's Court, pay or cause to be
paid to such collector the sum of one farthing in the pound
sterling on the aggregate value of all metals and metallic
minerals which shall have been brought to sale or with-
drawn from such mine during the preceding quarter ; and
that every such payment by such head manager shall be
considered as costs, and shall, on passing his account with
respect to the mine of which he is such head manager, be
allowed to him accordingly.
XXIX. And be it further enacted. That the Reeistrar
for the time being shall, out of the monies which shau from
time to time be in his hands by means of such assessments
as aforesaid, and by means of the remaining of the Court
fees as aforesaid, pay to the said Vice Warden and to himself
and the other officers aforesaid of the said Court the sums
following, being other moiety of the said salaries, in manner
following ; (that is to say,) shall pay on the twenty-fifth day
of March and on the twenty-ninth day of September in each
year, free from all deductions, to the said Vice Warden the
sum of three hundred and seventy -five pounds, to himself the
Registrar the sum of one hundred and twenty -five pounds,
to the person filling the situation of secretary to the Vice
Warden the sum of twenty-five pounds, to the prothonotary
the sum of fifty pounds, and to the collector the sum of
seven pounds ten shillings (a).
XX A. And be it further enacted, That the said registrar
for the time being shall at the end of every half year lay
before the Vice Warden for the time being a full, true, and
particular account of the balance remaining in his hands at
the commencement of such preceding half year, and of all
monies received by him during such last halt year in respect
of such assessment as aforesaid, and when and from whom
and from what mine received, and also shall in such account
give credit for the remaining portion of the said Court fees
m his hands after such payment to the auditor of the duchy
(a) Now ten pounds.
Statute %Sf1 Wm. 4. c, 106. 223
as aforesaid, and shall also in like manner lay before the
Vice Warden a full, true and particular account of all sala-
ries and other expenses paid by such Registrar duripg the
same period ; and that a balance shall l^ thereby struck,
showing the balance remaining in the hands of such Registrar
at the end of the then last half year ; and that thereupon
the Vice Warden for the time being shall and is hereby
required to audit the said account, and also the said account
for Court fees hereinbefore mentioned, and if the same shall
be found correct to allow the same respectively by putting
his signature thereto; and that such accounts when so allowed
shall be filed amongst the records of the said Court, and be
open for the inspecti(m of all persons in the usual way :
Provided alwaysi, that if it shall at any time appear to the
Vice Warden for the time being, on auditing such account
of the Registrar, that there remains a general balance in his
hands sufficient to meet all payments hereby authorized to
be made thereout for the next half year, then and in such
case the Vice Warden shall have power, and is hereby
required, to give notice thereof by advertisement in the
county papers, or in such way as he shall think fit ; and that
thereupon no assessment shall be made or become payable
in respect of the said one farthing in the pound sterling on
the value of all metals and metollic minerals as aforesaid
during such succeeding half year : Provided nevertheless,
that, sdthough no such assessment shall in such case be made
during such period, the said manager of every mine is re-
quired to, and shall, make such return as aforesaid to the said
Registrar of all metals and metallic minerals brought to sale
or withdrawn from the mine over which he is such head
manager, precisely as if such assessments were or would be
payable in respect of the ore specified in such return.
XXXI. And be it further enacted, That if the head
manager of any mine shall omit to make such full, true and
particular return as hereby required of the quantities of
metals and metallic minerals brought to sale or withdrawn
as aforesaid in the mine of which he is such head manager,
or of the value thereof, as is hereby required, or shall, on
demand made, omit to pay or cause to be paid such assess-
ment as aforesaid, or shall wilfully make any false or incor-
rect return, then and in every such case such head manager
shall be subject for every such offence to a penalty not
exceeding fifty pounds (a).
(a) See the remedy for such penalty, Act 18 AHct. c. 32. s. 27.
224 Appendix of Statutes.
XXXII. And be it enacted, That the Vice Warden for
the time being may and shall in the present and every suc-
ceeding year order the clerk of the peace for the county of
Cornwall to make out a duplicate of the jurors book at the
time in use, or about to be brought into use, or of such part
of the said book as such Vice Warden may think fit to specify
in such order (a) ; and the clerk of the peace, upon receipt
of such order, shall, with all convenient speed, make out such
duplicate, and deliver the same to the Registrar of the Court
of such Vice Warden ; and that every such duplicate shall
be the book of jurors qualified and liable to serve as jury-
men in all cases before the Vice Warden for the time being,
and that every such duplicate shall be kept by the Registrar,
and shall be by him used as the jurors booK for the time
being.
XXXin. And be it enacted. That the Registrar of the
said Court shall cause to be summoned, one week before the
first day of each sitting of such Vice Warden, forty-eight (&)
persons named in the jurors book by him kept as aforesaid
to attend at the time and place appointed for holding such
sitting ; and every such summons shall be according to the
form given in the schedule hereto annexed, and shall be
served either personally on each such person or by leaving
it at his dwelling-house ; and that in summoning such per-
sons regard shall always be had as far as may be to the con-
venience of the individuals so summoned ; and no person
shall be summoned oftener than once in a year.
XXXIV. And be it enacted. That the Registrar of the
said Court shall make a list of the jurors so summoned,
together with the places of abode and additions, and shall
cause their names to be written severally on slips of paper
and put into a box, and the names of the jurors for the trial
of causes shall be drawn out of the box by the Registrar ;
and each party may, until no more than twelve remain,
object to any person whose name is drawn out, without
assigning any cause ; and if any objection is made to the
twelve so remaining, it must be stated to and decided on
by the Vice Warden for the time being ; and if any such
(a) The practice is to order a copy of so much of the book as
relates to certain parishes ; those which are situate in miniDg districts
being selected.
(b) Reduced to thirty-six persons by Act 1 1 & 12 Vict. c. 83.
sect. 8.
Statute QSfl Wm, 4. c, 106. 225
objection be allowed, the names of the jurors rejected with-
out cause assigned shall be returned to the box, and drawn
again until a sufficient number be found to make a jury of
twelve ; and such jury of twelve shall be the jury sworn for
the trial (a) : Provided always, That if there shall not be
twelve persons attending, or against whom no objection
shall have been allowed, it shall be lawful for the said Vice
Warden to order the requisite number of persons from
among the bystanders to be summoned by the Registrar,
and sit on the jury, subject to any objections which may be
made for causes assigned, ex(«pt for want of qualification
or want of summons; Provided also, That the said Vice
Warden may, if he sees fit, direct the Registrar to divide
the list of forty -eight jurors into two lists, and to require
the persons in the one list to attend and serve for so many
days at the beginning of the sittings as the said Vice
Warden shall order, and those in the other list to attend
and serve for the residue of the sittings, according as the
said Vice Warden shall think fittest for the convenience of
the said persons ; and then, and in that case, the Registrar
shall divide the said list of forty-eight jurors into two lists,
and cause the persons named in each of such lists to be
summoned to attend on different days accordingly.
XXXV. And be it enacted. That if any person, having
been duly summoned to attend as a juror in the Court of
the Vice Warden, shall not attend in pursuance of such
summons, or being thrice called in Court shall not answer
to his name, or if any such person being present in Court,
or any such bystander in Court, after having been called,
shall not duly appear, or after his appearance shall wilfully
withdraw himself from the presence of the said Court, it
shall be lawful for the said Vice Warden to impose such
fine upon every such person or bystander so making default
(unless some reasonable excuse shall be given to the satis-
faction of the said Vice Warden) as to the said Vice Warden
shall seem meet; and if such fine shall not be paid at the
time ordered by the said Vice Warden, the same shall and
(a) The old number of jurors in ordinary trials in the Steward's
Court was six. The number has been reduced from twelve to five
in small causes by sect. 7 of Act 11 & 12 Vi(t. c. 83. 'fhe lan^
guage of the present Act seems to preclude the parties from impa-
nelling a special jury except by consent. The records of the Court
shew that special juries were not unknown in its former practice.
l3
226 Appendix ofStaiuteg.
may be levied by writ of fieri facias to be issued out of
the common law side of the said Court of the Vice War-
den (a).
XXXXVI. And be it further enacted, That the Vice
Warden for the time being shall and may appoint a fit and
proper person to be crier and usher of his said Court, who
shall hold his office during the pleasure of the Vice Warden
for the time being, and may be removed in a summary
manner, and may and shall receive such fees for acting as
crier and usher of the said Court as the said Vice Warden
shall from time to time, by virtue of the provisions herein
contained, authorize.
XXXVII. And be it further enacted, That the Vice
Warden for the time being shall not during his continuance
in such office practise as a barrister and that the Registrar
for the time being of the said Court shall not during his
continuance in such office practise as a barrister or solicitor
or attorney in such Court, or in any other Court of law or
equity in the United Kingom of England and Ireland.
XXXVIII. And be it further enacted, That the Vice
Warden for the time being shall not demand or take, upon
any pretence, any fee, gratuity. Or reward whatever ; and
that such Registrar and other aforesaid officers of the said
Court appointed under this Act shall not demand or take,
upon any pretence whatever, any fee, gratuity, or reward
other than and except such as are hereby authorized, or
as shall be from time to time settled and allowed by the
Vice Warden for the time being by virtue hereof or of the
provisions herein contained ; and that if any such person
shall offend in that behalf he shall be removed from the
office he shall then hold, and be disabled from again holding
the same or any other office under this Act.
XXXI X. And be it further enacted. That a table of all
fees for the time bein^ authorized by the Vice Warden to
be taken by any solicitor or attorney practising in his said
Court, or by any officer of his said Court, for business done
therein, shall be hung up in some conspicuous place in such
Court.
XL. And whereas the gaol belonging to the Courts here-
tofore the Courts of the Vice Warden and of the Stannaries
is situate at Lostwithiel in the said county of Cornwall :
and whereas it would tend more to the public convenience
(a) See sect. 27 of 18 Vict. c. 32.
Statute 6^7 Wm, 4. o, 106. 227
that the Court of the Vice Warden should use as its gaol
or prison for all purposes the prison belonging to the county
of Cornwall, and situate at Bodmin, in lieu or place of the
said gaol at Lostwithiel; be it therefore enacted, that every
person hereafter arrested or taken prisoner or detained by
virtue of any writ, process, order, decree, or proceeding
issuing out of or from or by either side of the said Court of
the Vice Warden of the Stannaries, or committed for con-
tempt of the said Court, shall be taken to the county prison
at Bodmin in the said county of Cornwall, or to other the
prison for the time being of the said county, in the same
manner, and subject to the same provisions and regulations
in every respect, as if such person were arrested and con-
veyed to the prison b^ virtue of any writ, process, order,
decree, or proceeding issuing out of any of the superior
Courts of law or equity at Westminster, or committed for
contempt by any of the said last mentioned Courts ; and
the gaoler or keeper for the time being of such county prison
as aforesaid is hereby authorized and required to receive
into such county prison every person so arrested and con-
veyed to prison by virtue of any writ, process, order, decree,
or proceeding issuing out of or from or by either side of the
said Court of the Vice Warden, or so committed for con-
tempt of the said Court as aforesaid, and to maintain, sup-
port, and provide for every such person in the same manner
as if he had been arrested and brought to the said county
prison by virtue of any writ, process, order, decree, or pro-
ceeding issued out of any of the superior Courts of law or
equity at Westminster, or were committed for contempt of
any of the said last mentioned Courts ; and that all and
singular the charges and expences of maintaining, support-
ing, and providing for every person so arrested or committed
to the said county prison as aforesaid shall be paid and
defrayed out of such portion of county rate of the said
county of Cornwall as for the time being shall be applicable
to the support of the debtors confined in the said county
prison.
XLI. And be it enacted, That all jurisdictions, powers,
and authorities heretofore lawfully exercised by the Vice
AVarden or Steward or any Judge of any of the Stannaries
shall be hereafter exercised by the Vice Warden for the
time being ; and that all penalties heretofore authorized to
be recovered, and all oaths heretofore required or authorized
to be taken, and all acts, matters, and things heretofore
required or authorized to be had or done in any of the
228 Appendix of Statutes,
Courts of the Stannaries, or before the Vice Warden or the
Steward of any of the Stannaries, shall be and are hereby
required and authorized to be recovered, taken, had, and
done before the Vice Warden or in the Court (a) of the
Vice Warden, as the case may be ; and that all proclama-
tions (&), returns, certificates, exhibits, matters and things
heretofore required to be made, transmitted, or given to
or deposited with any of the Courts of the Stannaries, or
the Vice Warden or Steward of any of the Stannaries,
shall be and are hereby required to be made, transmitted,
and given to and deposited with the Court of the Vice
Warden ; and all bonds and recognizances heretofore re-
quired to be entered into before the Steward or any of the
Courts of the Stannaries shall be entered into before the
Registrar of the said Court.
XLIL And be it further enacted. That it shall be lawful
for the Court of King's Bench at Westminster, on the appli-
cation of any party to any action or suit on the common law
side of the said Court of the Vice Warden, on special and
sufficient cause shown by affidavit to the satisfaction of such
Court of King's Bench that an impartial or sufficient trial
cannot be had in such Court of the Vice Warden, to r.-
move, by writ of certiorari, all proceedings which may have
been had in such action or suit, and to deal therewith, and
to make such orders respecting the same and the future trial
of and proceedings in such action or suit as to the said Court
of King's Bench shall seem meet.
XLIII. And be it further enacted. That all acts, statutes,
laws, liberties, privileges, customs, rights, usages, and free-
doms at the time of passing this act m force m any of the
Stannaries of the said county of Cornwall shall, notwith-
standing any thing herein contained, continue and be and
have the same force and effect as if this Act had not passed,
save and except so far as the same or any of them are con-
trary or repugnant to the laws of this realm or inconsistent
with the provisions herein contained, or are annulled, re-
(a) In this and some other parts of this Act, the " Vice Warden,"
or " Court of the Vice Warden," are separately specified ; wliether
the terms were regarded as synonymous or as distinguishable doe>
not always appear. See also section 21, unte^ p. 218.
(6) The ** proclamations" seem to mean the proclamations of tin
bounds formerly made in the Stewards* Courts.
Statute 6^7 Wm. 4. c. 106. 229
pealed, or altered hereby or by means of any of the powers
and authorities hereby given.
XLIV. And be it further enacted, That wherever this
Act, in describing or referring to any person or matter or
thing, uses the words importing the siiigvlar number or the
masculine gender only, the same shall be understood to include
and shall be applied to several persons as well as one person,
and to females as well as males, and bodies corporate as well
as individuals, and several matters or things respectively as
well as one matter or thing respectively, unless there be
something in the subject or context repugnant to such con-
struction ;
And that wherever the word " plaintiff^' or " defendant'*
is used it shall mean the person instituting the proceedings
or the person against whom proceedings are instituted res-
pectively, in whatever way such proceedings are commenced ;
And wherever the word " mine'* is used, it shall mean any
mine, work, or adventure wherein, or connected with whicn,
any metals or metallic minerals are worked ;
And that wherever the words ^^head manager of any mine"
is used it shall mean the captain, purser, or other person
who for the time being shall have the principal superin-
tendence over such mine ;
And that the powers hereby given to the Lord Chancellor
of England shall and may be used by the lords commissioners
for the custody of, or the Lord Keeper of, the Great Seal for
the time being.
Provided always, that nothing herein contained shall apply
to or affect or extend or be considered as extending to the
county of Devon, or the Stannaries within the said county,
except as to the service in the said county of Devon of any
writ of subpoena issuing out of such Vice Warden's Court
as hereinbefore provided (a).
XLV. And be it further enacted. That this Act shall
commence and take effect on the twenty-ninth day of Sep-
tember one thousand eight hundred and thirtv-six.
XLVI. [Provision for amending, &c., the Act during the
same session of Parliament]..
(a) This exemption of Devon and its Stannaries from the opeia*
tion of the Act has, in effect, ceased, since the passing of the Act
18 Vict. c. 32., pos«.
230 Appendix of Statutes,
SCHEDULE to which the foregoing Act refers [s. 33] .
Form of Summons to Jurors,
You are hereby required to attend and serve as a juror at
the sitting to be holden before Vice Warden of the
Stannaries, at his Court (a), on the day of
next
Registrar of
To A 5. day of 183 .
Act 1 & 2 Vict. cap. 110.
An Act for aholishing Arrest on Mesne Process in Civil
ActionSy except in certain Cases ; for extending the Reme-
dies of Creditors (igainst the Property of Debtors; and
for amending the Laws for the Relief of Insoloent Debtors
in England. [16th August, 1838.]
' Whereas the present power of arrest upon mesne process
' is unnecessarily extensive and severe, and ought to be
* relaxed : ' Be it therefore enacted by the Queen's most
excellent Majesty, by and with the advice and consent of
the lords spiritual and temporal, and commons, in this pre-
sent Parliament assembled, and by the authority of the
same. That from and after the time appointed for the com-
mencement of this Act no person shall be arrested upon
mesne process in any civil action in any inferior Court
whatsoever, or (except in the cases and in the manner
hereinafter provided for) in any superior Court.
XII. And be it enacted, That by^ virtue of anj writ of
fieri facias to be sued out of any superior or inferior Court
after the time appointed for the commencement of this Act,
or any precept in pursuance thereof, the sheriff or other
officer having the execution thereof may and shall seize and
take any money or bank notes, (whether of the governor
and company of the Bank of Eni^land, or of any other bank
or bankers,) and any cheques, bills of exchange, promissory
notes, bonds, specialties, or other securities for money be-
longing to the person against whose effects such writ of fieri
(a) It will now be advisable to mention here the place where the
(}ourt is to be held.
Statute lSf2 Vict, c. 110. 281
facias shall be sued out ; and may and shall pay or deliver
to the party suing out such execution any money or bank
notes which shall be so seized, or a sufficient part thereof;
and may and shall hold any such cheques, bills of exchanffe^
promissory notes, bonds, specialties, or other securities for
money as a security or securities for the amount by such
writ of fieri facias directed to be levied, or so much thereof
as shall not have been otherwise levied and raised ; and
may sue in the name of such sheriff or other officer for the
recovery of the sum or sums secured thereby, if and when
the time of payment thereof shall have arrived ; and that
the payment to such sheriff or other officer by the party
liable on any such cheque, bill of exchana:e, promissory
note, bond, specialty, or other security, with or without
suit, or the recovery and levying execution against the
party so liable, shall discharge him to the extent of such
payment, or of such recovery and levy in execution, as the
case may be, from his liability on any such cheque, bill of
exchange, promissory note, bond, specialty, or other secu-
rity ; and such sheriff or other officer may and shall pay
over to the party suing out such writ the money so to be
recovered, or such part thereof as shall be sufficient to dis-
charge the amount by such writ directed to be levied ; and
if, after satisfaction of the amount so to be levied, together
with sheriff's poundage and expences, any surplus shall
remain in the hands of such sheriff or other officer,.the same
shall be paid to the party against whom such writ shall be
so issued; provided that no such sheriff or other officer
shall be bound to sue any party liable upon any such cheque,
bill of exchange, promissory note, bond, specialty, or other
security, unless the party suing out such execution shsJl
enter into a bond, with two sufficient sureties, for indemnify-
ing him from all costs and expences to be incurred in the
prosecution of such aciion, or to which he may become liable
m consequence thereof, the expence of such bond to be
deducted out of any money to be recovered in such action.
XVII. And be it enacted, That every judgment debt
shall carry interest at the rate of four pounds per centum
per annum from the time of entering up the judgment, or
from the time of the commencement of this Act in cases of
judgments then entered up and not carrying interest, until
the same shall be satisfied, and such interest may be levied
under a wrjt of execution on such judgment.
XXII. And be it enacted. That in all cases where final
judgment shall be obtained in any action or suit in any
inferior Court of record in which at the time of passing of
232 Appendix of Statutes,
this Act a barrister of not less than seTen years standing
shall act as jud^ assessor, or assistant in the trial of
caoses, and also in all cases where any role (a) or order
shall be made' by any such inferior Court of record as
aforesaid whereby any sum of money, or any costs, charges,
or expences, shall be payable to any person, it shall be
lawftu for the Judges of any of her Majesty's superior
Courts of record at Westminster, or if such inferior Court
be within the county Palatine of Lancaster for the Judges
of the Court of Common Pleas at Lancaster, or for any
Judge of any of the said Courts at Chambers, either in
term or vacation, upon the application of any persons who
at the time of the commencement of this Act shall have
recovered or who shall at any time thereafter recover such
judgment, or to whom any money, or costs, charges, or ex-
pences, shall be payable by such rule or order, as aforesaid,
or upon the application of any person on his behalf, and
upon the production of the record of such judgment, or
upon the production of such rule or order, such record, or
rule or order, as the case may be, being respectively under
the seal of the inferior Court and signature of the proper
officer thereof, to order and direct the judgment, or, as the
case may be, the rule or order, of such inferior Court to be
removed into the said superior Court or into the Court of
Conmion Pleas at Lancaster, as the case may be, and imme-
diately thereupon such judgment, rule or order shall be of
the same force, charge, and effect as a judgment recovered
in, or a rule or order made by, such superior Court, and all
proceedings shall and may be immediately had and taken
thereu|)on or by reason or in consequence thereof as if such
judgment so recovered, or rule or order so made, had been
originally recovered in, or made by, the said superior Court,
or into the Court of Common Pleas at Lancaster, as the case
may be ; and all the reasonable costs and charges attendant
upon such application and removal shall be recovered in
like manner as if the same were part of such judgment or
rule or order : Provided always, that no such judgment or
rule or order when so removed as aforesaid shall atfect any
lands, tenements, or hereditaments, as to purchasers, mort-
gagees, or creditors, any further than the same would have
done if the same had remained a judgment, rule, or order of
such inferior Court, unless and until a writ of execution
thereon shall be actually put into the hands of the sheriff or
other officer appointed to execute the same.
(a) See ante, sect. 12 of 6 & 7 Wm. 4. c. 106., p. 213.
Statute 2^3 Vict. c. 58. 233
Act 2 & 3 Vict. cap. 58.
An Act to make further Provision for the Administration of
Justice, aiidfor improving the Practice and Proceedings, in
the Courts of the Stannaries of Cornwall; and for the
Prevention of Frauds by Workmen employed in Mines
within the County of ComwaU, [17th August, 1839. J
Whereas by an Act passed in the last session of Parliament,
for the abolition of the duties payable on the coinage of tin
in the counties of Cornwall and Devon, and for giving com-
pensation in lieu of such duties, and to reduce the duties of
customs payable on tin, the tinners of Cornwall were re-
leased from all payment of the duty of coinage on tin and
tin ore raised withm the county, and thereupon it is reason-
able and just that the said tin ore be subject to the like
assessment as all other metals and metallic minerals raised
in the said county are subject by virtue of an Act made and
passed at a Parliament held in the sixth and seventh years
of the reign of his late Majesty King William the Fourth,
to make provision for the more expeditious administration
of justice in the Stannaries of Cornwall, and for improving
the practice and proceedings in the Courts of the said
Stannaries : And whereas also it is expedient that such
last mentioned Act be amended in certain cases :
Be it therefore enacted by the Queen's most Excellent
Majesty, by and with the advice and consent of the lords
spiritual and temporal, and commons, in this present Parlia-
ment assembled, and by the authority of the same. That
from and after the twenty-ninth day of September one
thousand eight hundred and thirty-nine there be paid and
payable the sum of one farthing in the pound sterling on the
value of all tin and tin ore which shall from time to time
be brought to sale in or withdrawn from any mine or stream
work within the said county of Cornwall ; and that the head
manager of every tin mine and stream work shall, in respect
of such tin and tin ore, and the assessment and payment of
one farthing in the pound sterling thereon, be liable to all
such obligations, penalties, and payments, and allow all such
discharges, as are imposed on and allowed to the head
raana&:er of any other mine in the said county in respect of
the like assessment and payment on other metals and
metallic minerals imposed by virtue of the said Act passed
at the Parliament held in the sixth and seventh years of the
284 Appendix of Statutes.
reign of his late Majesty King William the Fourth ; and that
the monies arising bj means of such assessment on tin and
tin ore shall form part of the general fund provided bj the
said last mentioned Act and arising from the assessment of
metals and metallic minerals, and be recovered and applied
according to the provisions of the said Act ; and that from
and after the said twenty-ninth day of September one thou-
sand eight hundred and thirty-nine there be paid to the
collector of such assessment, in addition to his present
salary, the sum of ten pounds in every year, charged in
equal moieties on the said fund and on the revenues of the
duchy of Cornwall, and payable as his present salary is paid.
II. And whereas the attendance of jurors at the Court of
the Vice Warden of the said Stannaries is long and laborious ;
be it therefore enacted. That all persons who shall duly
attend the said Court as jurors shall be exempted from
attendance as jurors at the sessions for the said county of
Cornwall for one year from the time of their attendance as
jurors at the said Court, and the Vice Warden of the said
Stannaries shall at the close of each of his sittings cause to
be made and sent to the clerk of the peace of the said county
a list of those jurors who shall have duly attended at his said
Court. [Proviso as to appropriation of fines imposed by
the Vice Warden, Repealed].
in. [Repealed provision limiting appeals in cases of
damages not exceeding 20/., and requiring security on
apneas].
IV. [Repealed provision for restricting appeals from
decrees].
V. And be it enacted. That so much of the said Act
passed at the Parliament held in the sixth and seventh
years of the reign of his late Majesty as regulates the time
within which any motion must be made for a new trial (a)
shall be and the same is hereby repealed ; and that the said
Vice Warden may make such rules and orders in his said
Court relating to the time for moving for new trials and re-
hearings of causes, and to all matters relating to the taxation
of costs, and to practice, as to him may from time to time
seem fit, any thing in such Act to the contrary notwith-
standing (6).
(a) See sect 8 of the Act here referred to.
(6) This limited power of making rules and orders is still io force.
See secU 23 of 18 Vict. c. 32., and ante, p. 214, n. (6).
Statute 2^3 Vict, e. 58. 235
YI. And be it enacted, That the Kegistrar of the said
Court of the said Vice Warden may, in all causes pending
therein, administer oaths, take affidavits and affirmations,
and receive depositions relating thereto; and that anj
commissioner of the superior Courts of common law at
Westminster, having by commission from such Courts or
any of them authority to take affidavits in matters relating
to such Courts or any of them, may, without fee or reward,
apply for and have, by commission of the said Vice Warden,
under his seal of the Stannaries, authority to take affidavits
and affirmations in all suits and matters in the Court of
common law of the said Vice Warden ; and that the said Vice
Warden may, without fee or reward, by commission under
his said seal, give authority to any solicitor of the superior
Court of equity, or to any attorney of any of the said superior
Courts of common law resident or practising in or near
Westminster, to take affidavits and affirmations in all suits
and matters in the Court of the said Vice Warden («).
VII. And be it enacted. That if, in consequence of acci-
dent or illness, the said Vice Warden shall be prevented
from attending at Truro on the day appointed for him to
hold his sittings there, or any adjournment thereof, the
Registrar of the said Court of the said Vice Warden shall
have power from time to time to open and adjourn such
Court, and thereupon all persons summoned or bound or
(«i) The Act 4 & 5 Wm. 4. c. 42. (ante, p. 208) empowered the
commissioners of the superior Courts of common law to receive com-
missions and take affidavits in causes brought by appeal before the
Vice Warden. After the Court of the Vice Warden became a Court
of original jurisdiction, it was doubted whether the power did not
cease as to common law causes ; and although the same Act autho-
rizes the Vice Warden to grant commissions to Masters extraordinary
in Chancery to take affidavits in " all other suits or matters,** yet
thi«: clause was considered insufficient to supply the defect, inasmuch
as it seems to contemplate only proceedings in equity. Hence the
insertion of the present clause, which however is rather loosely
expressed in the latter part. It would have been desirable to dis<
pense with the Vice Warden's commission altogether, and to give
the power at once to all commissioners for the superior Courts of
law or equity ; especially as the Vice Warden has no discretion
in the choice of the party commissioned.
236 Appendix of Statutes.
having occasion to attend thereat shall attend according to
such adjournment as if the Vice Warden had been present
and adjourned the Court ; and the Vice Warden, when he
shall be present at such Court so adjourned, shall proceed
thereat as if the day of adjournment had been the daj
originally appointed for the holding thereof; and the said
Vice Warden shall, without delay, send a statement in wri-
ting for the Lord Warden, to be delivered to the secretary of
the Lord Warden, of the cause whereby he was prevented
from attending as aforesaid ; and the said Lord Warden
shall, without delay, produce such statement to the council
or commissioners or principal oflScers of the said duchy who
have authority to require the removal of the Vice Warden
from his office : Provided also, that in case of a sufficient
cause being at any time shown to such council or commis-
sioners or principal officers, a majority of five of them the
said council or commissioners or principal officers as afore-
said, of whom the said Lord Warden, if he be present, shall
be one, may appoint a fit person, being a barrister of ten
years standing at the least, to execute the duties of the
Vice Warden for a time not exceeding four calendar
months together (a).
Vin. And be it enacted. That if any person be in custody
for contempt, or be alleged to be in contempt, of any order
or decree of the said Vice Warden, or be in custody for any
cause relating to his said Court, when the same Court is not
sitting, such person shall, by order of the Court, be brought
before the Vice Warden or Registrar, who shall hear the
defence or allegations of such person, and thereupon the
said Vice Warden may commit, or the said Vice Warden or
Registrar may, in their discretion, resj?ectively discharge
sucn person altogether, or may otherwise discharge such
person until the next sittings or for some shorter period, on
such person so discharged 'giving good security for his
appearance at the next sittings or the expiration of such
snorter period, and on such other terms as the nature of the
case may require : Provided always, that if such security be
forfeited the Vice Warden may thereupon order what shall
appear to be just, and give relief accordingly.
IX. [A repealed provision for enabling the Registrar to
make formal amendments before plea or answer] (o).
(a) This is to some extent altered by sect. 24 of 18 Vict. c. 32.
{b) These powers are enlarged by sect. 19 of Act 18 Vict. c. 32.
Statute 7 SfS Vict e, 19. 237
X. And for the prosecution and punishment of frauds in
mines by idle and dishonest workmen removing or conceal-
ing ore for the purpose of obtaining more wages than are of
right due to them, and thereby defrauding the adventurers
in or proprietors of such mines, or the honest and industrious
workmen therein, be it enacted, That if anjr person or per-
sons employed in or about any mine withm the county of
Cornwall shall take, remove, or conceal the ore of any metal,
or any lapis calaminaris, manganese, mundick, or other
mineral found or being in such mine, with intent to defraud
the proprietor or proprietors of or adventurer or adventurers
in such mine, or any one or more of them respectively, or
any workman or miner employed therein, then and in every
such case respectively such person or persons so offending
shall be deemed and taken to be guilty of felony, and being
convicted thereof shall be liable to be punished in the same
manner as in the case of simple larceny (a).
Act 7 & 8 Vict. cap. 19.
An Act for regulating the Bailiffs of Inferior Courts (b),
[eth June, 1844.]
Whereas Courts are holden in and for sundry counties,
hundreds, and wapentakes, honours, manors, and other
lordships, liberties, and franchises, having by custom or
charter jurisdiction for the recovery of debts and damages
in personal actions, and in many places great extortion is
practised under colour of the process of such Courts : For
(a) This is extended to Devonshire by sect. 28 of 18 Vict. c. 32.
{b) This has been partly reprinted here, because some of its
provisions are referred to, and made applicable to the Vice Warden's
Court by the act 11 & 12 Vict. c. 83. s. 9., post, p. 255. Whether it
would have applied to the Court without such express provision is
doubtful. Another act, passed in the same session (7 & 8 Vict,
c. 96), contains provisions in some respects similar to those of the
present act. Those which are supposed to be clearly applicable to
the Vice Warden's Court are stated hereafter.
288 Appendix of Statutes,
remedy thereof, be it enacted by the Queen's most excellent
Majesty, by and with the advice and consent of the lords
spiritual and temporal, and commons, in this present Par-
kament assembled, and by the authority of the same, that
the judge of every such Court shall have power to appoint
a sid£cient number of proper and responsible persons to act
as bailiffs of the said Court, and in the execution of the
process thereof, and to suspend or dismiss any such bailiff
for misconduct, and no bailiff so dismissed shall be qualified
to be reappointed ; and the bailiffs of the Court so appointed,
and no other persons, save as hereinafter mentioned, shall
serve all summonses, and execute all orders, warrants,
grecepts, writs, and other processes issued out of the said
ourt ; and a list containing the name and place of abode
of every such bailiff shall be put up in a conspicuous place
in the said Court : Provided always, that this act shall not
extend to prevent any process from being executed by any
high sheriff or high bailiff, or any officer appointed by act
of Parliament to perform the duties of sheriff with regard to
the execution of process out of any such Court, or his or
their bound bailiffs or other officers.
m. And be it enacted, That every bailiff authorized to
execute the process of any such Court who shall wilfully
and corruptly exact, take, or accept any fee or reward
I whatsoever other than and except such fees as shall be
[ allowed by law and declared by order of the Court, which
I shall be put up in some conspicuous place in the Court, shall,
j upon proof thereof before the said Court, be for ever
1 incapable of serving or being employed in any office of profit
i or emolument of the said Court.
■ IV. And be it enacted. That if any bailiff acting under
• colour or pretence of the process of any such Court shall be
; guilty of extortion or misconduct, or shall not duly pay or
I account for any money levied under process of the said
1 Court, it shall be lawful for the judge to inquire into such
1 matter in a summary way, and for that purpose to summon
' and enforce the attendance of all necessary parties, and to
! make such order thereupon for the repayment of any money
I extorted, or for the due payment of any money so levied as
I aforesaid, and for the payment of such damages and costs
I to the parties aggrieved, as he shall think just; and in
I default of payment of any money so ordered to be paid
i within the time specked for the payment thereof it shall be
I lawful for the judge of the said Cfourt, by warrant under
his hand and seal, to cause such sum to be levied by distress
Statute 1 Sf% Vict. c. 65. 239
and sale of the goods of the offender, together with the
reasonable charges of such distress and sale, and in default
of such distress to commit the offender to the county gaol
or house of correction for any time not exceeding one
calendar month.
VII. And be it enacted, That if any bailiff of any such
Court shall be assaulted while in the execution of his duty,
or if any rescue shall be made or attempted to be made of
any person or goods taken or levied under process of any
such Court, the person offending therein, on conviction
thereof before any two justices of the peace, shall be im-
prisoned with or without hard labour in the common gaol
or house of correction for any term not exceeding three
calendar months, or shall forfeit and pay such fine not
exceeding five pounds as may be set upon him by the said
justices of the peace ; and every such fine, with the costs of
conviction, in case of nonpayment thereof, shall be levied by
distress and sale of the goods of the offender.
Act 7 & 8 Vict. cap. 65.
An Act to enable the Council of his Royal Highness Albert
Edward^ Prince of Wales^ to s^ll and exchange Lands and
enfranchise Copyholds^ Parcel of the Possessions of the
Duchy of Cornwall^ to purchase other Lands, and for other
Purposes, [6th August, 1844.]
XL. And whereas the business of the Court of the Vice
Warden of the Stannaries of Cornwall is usually carried on
in ihe borough of Truro, but there is at present no proper
court-house or other accommodation for the said Court and
for the officers and suitors thereof: And whereas the mayor,
aldermen and burgesses of the borough of Truro, in the
county of Cornwall, intend shortly to rebuild the Town-
hall of the said borough, and have offered, in consideration
of the sum of one thousand five hundred pounds, to be paid
to them by the Duke of Cornwall, to provide such sufficient
accommodation for the said Court and officers, as hereinafter
mentioned, within the new Town-hall of the said borough ;
Be it therefore enacted. That, provided the said mayor,
aldermen and burgesses of Truro afi^resaid shall within two
years after the passing of this act, rebuild the said Town-
240 Appendix of Statutes.
hall, and provide within the said Town-hall a court-room,
record office, and other rooms proper and sufficient for the
accommodation of the said Vice Warden and officers and
suitors of the Court of the Stannaries of Cornwall, according
to plans to be approved of by the council of his said Royal
Highness, it shall be lawful for the council of his said Royal
Highness, out of the revenues of the said duchy, or out of
anj sums of money to be received under the authority of
this act, to pay to the said mayor, aldermen and burgesses
of the said borough of Truro the sura of one thousand five
hundred pounds (the receipt whereof shall be acknowledged
under the common seal of the corporation of Truro), towards
the expense of erecting the said Town-hall, and that from
and after the payment of the said sum of one thousand five
hundred pounds, the said court-room shall, at all times when
the same shall be required by the said Vice Warden (except
at the times hereinafter mentioned), be exclusively appro-
priated to the use of the Vice Warden, officers and suitors
of the said Court of the Stannaries of Cornwall during the
sitting thereof, and shall be at all such times, as to the
cleaning, lighting, warming thereof, and the attendance
therein, and m all other respects, at the entire disposal of
the said Vice Warden ; and as to the said record office and
other rooms to be provided as aforesaid, the Registrar and
other officers of the said Court shall at all times thereafter
be entitled to the exclusive use and occupation of the same
for the custody of the records of the said Court, and the
performance of the duties of their respective offices : Pro-
vided nevertheless, that the said court-room shall not be
required to be so appropriated as aforesaid on the ninth day
of November in any year, nor during the election of a
member of Parliament for the county of Cornwall or the
borough of Truro ; but that the said mayor, aldermen and
burgesses shall, at such times, if necessary, provide some
other sufficient room for the sittings of the said Court :
Provided also, that it shall be lawful for the said mayor,
aldermen and burgesses, or their successors, at any time
hereafter, to repay to his said Royal Highness, his heirs
or successors, the said sum of one thousand five hundred
pounds ; and that if at any time hereafter the said mayor,
aldermen and burgesses or their successors shall cease
or neglect to provide and maintain such sufficient rooms
and other accommodation for the Vice Warden, officers and
suitors of the said Court, it shall be lawful for his said
Royal Highness, his heirs and successors, to require such
Statute 1 SfS Vict, c, 9G. 241
repayment ; and that from and after such repayment by the
said mayor, aldermen and burgesses, or their successors, the
obligation to provide and maintain such rooms and accom-
modation as aforesaid shall cease.
Act 7 & 8 Vict. cap. 96.
An Act to amend the Law of Insolvency, Bankruptcy, and
Execution. [9th August, 1844].
LVn. And whereas it is expedient to limit the present
power of arrest upon final process ; be it enacted. That
from and after the passing of this Act no person shall be
taken or charged in execution upon any judgment obtained
in any of her Majesty's superior Courts, or in any County
Court, Court of Requests, or other inferior Court, in any
action for the recovery of any debt wherein the sum re-
covered shall not exceed the sum of twenty pounds, exclu-
sive of the costs recovered by such judgment,
LIX. Provided always, and be it enacted. That if at any
time it shall appear to the judge who shall try such cause,
being either a judge of one of the superior Courts, or a
barrister or attorney at law, that the defendant, in incurring
the debt or liability which may be the subject of demand,
has obtained credit from the plaintiff' under false pretences,
or with a fraudulent intent, or has wilfully contracted such
debt or liability without having at the same time a reason-
able assurance of being able to pay or discharge the same,
or shall have made or caused to be made any gift, delivery,
or transfer of any personal property, or shall have removed
or concealed the same, with an intent to defraud his cre-
ditors or any of them, it shall be lawful for such judge, if
he shall think fit, to order that such defendant may be taken
and detained in execution upon such judgment in like
manner and for such time as he might have been if this
Act had not been passed, or for any time not exceeding six
calendar months in any case in which the time for which a
person taken in execution under process issuing out of any
such Court could lawfully be detained in custody, according
to the constitution of the said Court, before the passing of
242 Appendix of Statutes,
this Act, is less than six calendar months, whether, or* not,
execution against the goods and chattels of such defendant
shall have issued as hereinafter provided.
LXIV. And be it enacted, That in case any bailiff* of anj
such Court, who shall be employed to levy any execution
against goods and chattels, shall, by wilful or notorious
neglect or connivance or omission, lose the opportunity of
levying any such execution, then, upon complaint of the
party aggrieved by reason of such neglect, connivance, or
omission, (and the fact alleged being proved to the satisfac-
tion of the Court out of which execution issued, on the oath
of any credible witness,) the judge shall order such bailiff*
to pay such damages as it shdl appear that the plaintiff has
sustained thereby, not exceeding in any case the sum of
money for which the said execution issued ; and the bailiff
shall be liable thereto ; and upon demand made thereof, and
on his refusal so to pay and satisfy the same, it may be
recovered against him by such ways and means as are pro-
vided for the recovery of debts adjudged in the said Court.
LXVII. And be it enacted. That no landlord of any
tenement let at a weekly rent shall have any claim or lien
upon any goods taken in execution under the process of
any Court of law for more than four weeks arrears of rent ;
and if such tenement shall be let for any other term less
than a year the landlord shall not have any claim or lien
on such goods for more than the arrears of rent accruing
during four such terms or times of payment (a).
(a ) The only parts of this Act reprinted here are those which appear
to be applicable to the Vice Warden's Court. Other sectioDs
of the Act can only apply to County Courts or other local Courts
having officers called ** clerks" or to Courts created expressly for
the recovery of small debts, of which the Vice Warden's Court is
, not one. The application of section 64 is possibly open to question ;
for the bailiffs of the Stannaries are appointed under the later Act
- 11 & 12 Vict. c. 83., and expressly made subject to the provbions
I of another Act. See ante, p. 237.
' Whether any other parts of this Act are applicable to officers of
j this Court is a question on which the suitors or their legal adviaen
must exercise their own judgment.
hHatnte 1 Sf % Vict, c, 105. 243
Act 7 & 8 Vict. cap. 105.
An Act to confirm and enfranchise the Estates of the Con-
ventionary Tenants of the ancient Assessionahle Manors of
the Duchy of Cornwall and to quiet Titles vnihin the County
of Cornwall as agairist the Duchy ; and for other Pur-
poses (a). [9th August, 1844.]
LIII. And be it declared and enacted, That all mines
and metallic minerals in and under all and singular the
tenements now or at any time within one hundred years
before the said first day of May one thousand eight hundred
and forty-four held as conventionary tenements of the said
manors mentioned in the said first schedule hereunto an-
nexed respectively, and all mines, minerals, stone, substrata,
and all other profits whatsoever in, upon, under, and of, all
waste and other demesne lands of the same manors respec-
tively, and all mines, minerals, stone, and substrata in,
upon, under, and of all other lands lying within or parcel of
the same manors respectively, and which said last mentioned
mines, minerals, stones, or substrata shall by such award
be determined to belong to the I>uke of Cornwall, do and
shall belong absolutely to the Duke of Cornwall as posses-
sions by the hereinbefore recited charter granted, and
thereby annexed to the duchy of Cornwall as aforesaid, but
without prejudice to the estates or rights (if any) of any of
the present lessees of the Duke of Cornwall therein.
LIY. And be it declared and enacted. That all mines
and metallic minerals in, upon, under, and of all and sin-
gular the tenements now, or at any time within one hundred
(a) It has been thought desirable to reprint certain clauses of this
Act by which the decision of certain matters arising, or which may
arise, upon the award made under it, devolves upon the Vice Warden
or the justices of the county of Cornwall. A few clauses imme-
diately connected with the subject of this jurisdiction are also in-
serted by way of explanation. The first schedule in the Act contains
the names of the assessionahle manors oi the Duchy still untiold.
The second contains the manors sold under the redemption of the
Land-tax Act about sixty years ago, reserving the mines and minerals.
M 2
244« Appendix of Statutes,
years before the said first day of May one thousand eight
hundred and ibrty-four, held as conventionary tenements
of any of the said manors mentioned in the said second
schedule hereunto annexed respectively, and all mines and
metallic minerals whatsoever in, upon, under, and of all lands
lying within the same manors respectively, and which at
the times of the aforesaid sales of such manors respectively
were waste or demesne lands thereof respectively, and all
mines and metallic minerals in, upon, and under all other
lands lying within or parcel of the same manors respec-
tively, and which said last mentioned mines and metallic
minerals shall by such award be determined to belong to
the Duke of Cornwall, do and shall belong absolutely to the
Duke of Cornwall as possessions by the herembefore
recited charter granted, and thereby annexed to the duchy
of Cornwall as aforesaid, but without prejudice to the
estates or rights (if any) of any of the present lessees of the
Duke of Cornwall therein.
LV. And be it declared and enacted. That it shall be
lawful for the Duke of Cornwall, his agents and workmen,
and his lessees and their agents and workmen, and all
persons whom the Duke of Cornwall shall in that behalf
authorize, and their agents and workmen, to enter into and
upon all lands or tenements of any tenure situate or being
within or held of any of the said manors mentioned in the
said first and second schedules hereunto annexed, all or any
the mines, minerals, stone, or substrata in, upon, under, or
of which do or shall belong to the Duke of Cornwall as
hereinbefore is declared and provided, and to search, dig
for, open, and work the same mines, and get, carry away,
and dispose of the same minerals, stone, or substrata, and
to erect all such buildings, steam and other engines, and
machinery and things, and sink and make all such pits,
shafts, levels, adits, air-holes, tram and other roads, and
other works, and to take from the said lands and tenements
suflScient stone, lime, and slate for such buildings and other
works, and take and use and divert all such water, and take
and use all such room for ore and rubbish and other things,
and do all such other acts and things upon, under, in, and
about the aforesaid lands and tenements, as shall be neces-
sary or convenient for working the same mines, and getting,
washing, dressing, rendering merchantable, carrying away,
and disposing of the same minerals, stone, or substrata,
he the said Duke of Cornwall, or his lessees, or the persons
authorized by him as aforesaid (as the case may be).
.Statute 7^8 Vict. c. 105. 245
making to the persons entitled to the surface of such l^ids
or tenements, or to such water, adequate compensation for
the damage which shall have been done or occasioned by
the exercise of the rights, privileges, and easements afore-
said, and making to the persons entitled to the same
adequate compensation for the materials so taken as afore-
said : Provided nevertheless, that no person shall be en-
titled to claim any compensation for damage to be done by
the exercise of any of the rights, privileges, or easements
aforesaid, unless such claim be made in writing before the
expiration of six calendar months after such damage shall
have been done, or where the entry or other act by which
such damage shall be done shall be of a continuing nature,
then before the expiration of six calendar months from the
time when such entry or other act shall determine or cease :
Provided also, that a notice in writing, claiming compen-
sation as aforesaid, given by or on behalf of the person
entitled to receive the same to the Duke of Cornwall, or
other person by whom such damage shall be done, or to
any agent or workman who shall be employed by the Duke
of Cornwall, or such other person, in the entry or other act
by which such damage shall be done, shall be a sufficient
claim for the purposes of this act.
LVI. And be it enacted. That if any dispute shall arise
between the Duke of Cornwall or his lessees, or any persons
authorized by him to enter upon any lands or tenements
as aforesaid, and any person claiming compensation for
damage done to such lands or tenements, or to such water
as aforesaid, by the exercise of any of the rights, privileges,
or easements aforesaid, or claiming compensation for mate<
rials so taken as aforesaid, either touching the matters in
respect of which compensation ought to be made in pur-
suance of this act, or the amount of such compensation,
such dispute shall be decided either by two justices of the
peace for the county of Cornwall, or (at the option of the
person from whom such compensation is claimed) by the
Vice Warden of the Stannaries of Cornwall, upon the
petition of any or either of the parties so disputing or other-
wise; audit shall be lawful for the said justices or Vice
Warden, at the expence of the parties disputing, or any or
either of them, in their or his discretion, to require the
aid, and take the opinion or advice of any surveyor^ mining
agent, or other person, and to adopt such other measures,
and give such directions, as shall appear to the said justices
or vice Warden expedient for enabling them or him to
246 Appendix of Statutes. .
determine concerning the matters in dispnte as aforesaid :
Provided always nevertheless, that no application, except
by consent, shall be made to the said justices or to the said
Vice Warden to award compensation for damage done
npon any entry, under the authority of this Act, for the
purpose of searching for or working mines and minerals,
until the end of twelve calendar months next after such
entry, unless such search or working shall have been sooner
abandoned or discontinued, or unless the persons entitled
t^ such compensation shall prove, to the satisfaction of
the said justices or of the said Vice Warden, that the amount
of compensation for damage theretofore done is larger
I than the sum or sums of money theretofore deposited or
I secured as a security for such compensation as hereinailer
j provided.
J LVII. And be it enacted, That for the purposes of this
I act the person entitled to claim and receive and agree upon
I the amount of all compensation for damage done to such
t lands or tenements or water as aforesaid, shall be the
5 person for the time being in possession, or in the receipt of
• the rents and profits of the lands or tenements or water in
I or to which such damage shall be done ; and all such com-
I pensation shall be received and held by such person for the
I benefit of himself and of the other person (if any) havings
any estates or interests in the said lands or tenements or
I water, according to their respective estates and interests
[ therein ; and the receipt of such person shall be a sufficient
[ discharge for the compensation aforesaid, and shall exone-
] rate the person paying the same from being bound to see to
the title of the person receiving the same, or to the applica-
tion thereof: Provided always nevertheless, that where the
lands or tenements or water to which damage shall be done
[ as aforesaid shall be in the possession of any lessee or occu-
'■ pier at rack rent, or of any lessee or occupier not having a
^ greater estate or interest therein than a term of twenty-one
years, such lessee or occupier shall not be deemed to be the
person in possession of such lands or tenements or water,
for the purpose of receiving all compensation as aforesaid,
but shall be entitled to claim and receive compensation for
> the damage done to his interest in such lands or tenements
, for water, separately from the compensation to be paid as
I hereinbefore is provided to the person for the time being in
the receipt of the rents and profits of the same lands and
tenements or water ; and the person who shall be in receipt
of such rack rent or the other rent payable by such lessee
Statute 7^8 Vict, c, 105. 247
or occupier, or (if there be no rent, then) the person enti-
tled to such lands and tenements in reversion or remainder
immediately expectant on the determination of the term or
interest of such lessee or occupier, shall be deemed the
person for the time being in possession or in receipt of the
rents and profits for the purposes of this act.
LVin. Provided always nevertheless, and be it enacted,
That every person receiving any such compensation as
aforesaid, who may not be entitled to an absolute and un-
qualified estate of inheritance in fee simple or fee tail, or
be enabled to appoint or dispose of an absolute or unquali-
fied estate of inheritance in fee simple in the lands or tene-
ments or water in respect of which such compensation may
have become payable shall, as between himself and the
other persons having estates or interests in the same lands
or tenements or water, have and be entitled only to such
estate or interest in the same compensation as will corres-
pond with his estate or interest in the same lands or tene-
ments or water ; and the rights, estates, and interests of all
or any of the persons interested in such compensation shall
and may be established at the suit of all or any of such
persons in the Court of the Vice Warden of the Stannaries
of Cornwall, or in any other Court of equity : Provided
always nevertheless, that if in any case the amount of such
compensation shall not exceed m the whole the sum of
twenty pounds, the same shall be retained wholly for his
own benefit by the person entitled to receive the same
aforesaid, although he may have only a limited or qualified
estate or interest in the lands or tenements or water in
respect of which such compensation may have become pay-
able ; but no person having such limited or qualified interest
shall, under any circumstances, be entitled so to retain any
compensation, if the sums paid for such compensation shall
exceed in the whole the sum of twenty pounds.
LIX. Provided always nevertheless, and be it enacted.
That when the person for the time being in possession or in
the recaipt of the rents and profits of the lands and tene-
ments or water to which damage shall be done as aforesaid
shall be a married woman, or an infant, or a lunatic or
idiot, or shall be under any other disability, or shall be
unknown or uncertain, or where notice shall be given in
writing by or on behalf of any person claiming any estate
or interest in such lands or tenements or water to the
person liable to pay any money for compensation for
damages done to such lands or tenements or water, re-
248 Appendix oj Statutes.
quiring that such money be not paid to the person in
possession or in the receipt of the rents and profits of the
same lands or tenements or water, then and in any of such
cases, or in any other case in which the same shall seem
1 expedient, it shall be lawful for the person liable to pay
i! such compensation to pay the same into the hands of the
j. Registrar of the Court of the Vice Warden of the Stan-
•1 naries, for the benefit of the persons interested therein,
jjl according to their several estates and interests, as the said
,j Vice Warden shall direct; and the receipt of the said
ij Registrar shall be a sufficient discharge for the compensa-
tion aforesaid, and shall exonerate the person paying the
same from being bound to see to the application thereof;
ijji and the rights, estates, and interests of all or any the
•! persons interested in such compensation shall be determined
} by the said Vice Warden upon the application of such
j, persons, or any of them, by petition or otherwise.
J LX. And be it enacted, That before the Duke of Corn-
\ wall, or any lessee of the Duke of Cornwall, or any other
i person, shall, under the authority of this act, enter upon
any lands or tenements (other than waste lands), to search,
,:. dig for, open, work, or get any mines or minerals, he shall
1" give one calendar month's previous nodce in writing of
'*\ such intended entry to the occupier of the surface of such
■; lands or tenements, or (if such occupier, or the place of
I; abode of such occupier, be unknown or uncertam) affix
f such notice in or upon some conspicuous part of such lands
F, or tenements ; and such notice shall specify and describe
] the lands and tenements upon which such entry is intended
to be made, and shall state the name and place of abode of
,:: the lessee or other person by whom or on whose behalf such
entry is intended to be inade.
LaI. And be it enacted. That every lessee or other
person (other than the Duke of Cornwall) who shall intend
; under the authority of this act to enter upon any lands or
I tenements (other than waste lands), to search, dig for, open,
: ■ work, or get any mines or minerals, shall before making such
;■ entry, if required so to do by any person interested m the
J surface of such lands or tenements, deposit the sum of
i twenty pounds, or any larger sum which the lessee or person
r so entering shall think fit, with the Registrar of the Court of
'*■ the Vice Warden of the Stannaries of Cornwall, or give to
^ such Registrar a joint and several bond, under the hands
;; and seals of such lessee or other person, and of one or two
sufficient sureties, (such surety or sureties, in case of dis-
Statute 1 SfS Vict. c. 105. 249
pute, to be approved of by the said Registrar, or by any
two justices of the peace for the county of Cornwall,) con-
ditioned for securino: the payment to such Registrar, or to
the Registrar for the time being of the said county, on
demand by him, of the sum of twenty pounds, or any larger
sum which the said lessee or other person making such entry
shall think fit ; and the sum so to be deposited or secured
by such bond, as the case n^ be, shall be held by the said
Registrar as a security for the payment of the compensation
to become payable for the damage to be caused by such
entry as aforesaid, and of the costs to be incurred in any
proceeding for determining the amount of such compensa-
tion, or otherwise in relation thereto ; and such deposit, or
the money to be recovered upon such bond, shall be paid
and applied by such Registrar accordingly, either upon
satisfactory proof being made to him of the same having
become payable, and of the person entitled under the pro-
visions of this Act to receive the same, or any part thereof,
or according to the direction of the said Vice Warden ; and
if in the prosecution of such search the amount of damage
(to be decided as hereinbefore is provided), and of such
costs, if any, shall be equal to or exceed the sum so deposited
or secured as aforesaid, then and in such case, and so often
as the same shall happen, it shall be lawful for the said Vice
Warden and he is hereby required, upon the application of
any person interested in such lands or tenements, to issue
his injunction to stop the further prosecution of such search
until the amount of such previous damage, and such costs
(if any), shall have been paid by the person liable to pay the
same, or until a further deposit of not less than twenty
pounds, or a further bond for not less than twenty pounds,
and with one or two sureties to be approved of as aforesaid,
shall have been made with or given to the said Registrar as
a security for the payment of the compensation to become
payable for the further damage to be caused by such search
as aforesaid, and to be paid and applied by such Registrar
as hereinbefore is provided.
LXII. And be it enacted. That upon the determination
of the possession upon such entry as aforesaid, and after
compensation shall have been made for all damage done, or
during the continuance of such possession, if compensation
shall have been made for all damage theretofore done, and
the mines shall either be in due and regular course of work-
ing, or shall have ceased to be worked, any monies which
may remain in the hands of the said Registrar out of the
M 3
250 Appendix of Statutes,
deposit or deposits which may have been made with him as
aforesaid, or out of any monies which may be recovered
upon any such bond as aforesaid, shall be repaid by him to
the person by whom the same shall have been deposited or
ipai<J, or his lawful representatives ; and any bond which
may have been given to the said Bej2:istrar as a secaritj as
aforesaid, and which shall remain in fbrce, shall be given np
J by him to the obligors, or anynf the obligors thereof, to be
/ cancelled ; and if any difierellce shall arise between the
\ parties whether the possession upon any such entry as afore*
I said has determined, or whether compensation has been
1 made for all damage done, or whether any mines shall be in
\t due and regular course of working or shall have ceased to
« be worked, the same shall be determined by the Vice War-
j! den of the Stannaries of Cornwall, upon the application of
}. any of the parties bjr petition or otherwise,
r LXIII. And be it enacted, That when any Registrar
J shall resign or be removed from his office, or die, he, his
executors or administrators, shall pay over all monies, if
any, which shall for the time being be in their or his hands
on account of such deposits or bonds as aforesaid to the
' succeeding Registrar ; and all bonds which shall be given
I to any Registrar in obedience to the provision hereinbefore
\\ contained may be sued upon by the Registrar for the time
y being' in his own name, as if the same had been given to
him ; and the Registrar for the time being shall hold all
such monies and bonds for the intents and purposes herein-
before mentioned.
^.; LXIV. And be it enacted, That the Vice Warden of the
Stannaries of Cornwall, with the approbation of the Lord
, ; Chancellor or Keeper of the Great Seal of England for the
time being, shall from time to time make and give such
r' orders and directions for the custody, investment, payment,
]! and application of the monies which shall come to the hands
of the Registrar of the said Court, under any of the provi-
sions of this Act or otherwise, or which now are in the hands
. I of the said Registrar, as to the said Vic^ Warden, with such
.' approbation as af(H'esaid, shall seem meet; and that the
[_, costs of all applications, suits, or proceedings under or by
\\ virtue of this Act shall be in the discretion of the said Vice
!t' Warden, and shall, if he shall so think fit, be taxed by the
Registrar of his said Court, and shall be paid by such person
I, or out of such fund, and to such person and in such manner,
as the said Vice Warden shall direct.
LXV. And be it enacted, That every person who shall
Statute 7^8 Vict c. 105. 251
become entitled, either by jigi'eement or voluntary arbitra-
tion, or by the decision of the said justices or Vice Warden,
as is hereinbefore provided, to any compensation for damage
done to the surface of any lands or tenements or water,
under the authority of this Act, or to any costs as aforesaid,
and who shall not receive the same from the Registrar afore-
said, out of the monies hereinbefore directed to be deposited
or secured for that purpose^ or otherwise, may recover such
compensation or costs from the person liable to pay the same
by action in any of her Majesty's Courts at Westminster, or
in the Court of the Vice Warden of the Stannaries of Corn-
wall ; and every person who shall so become entitled to any
compensation or costs as aforesaid shall also, in respect
thereof, be deemed to be a mining creditor, in respect of
the mines in the searching for or working whereof such
damage shall have been done, and shall have the same rights
of lien or hypothecation upon the buildings, machinery,
plant, and materials belonging to such mines, and the same
remedies, upon petition or otherwise, by injunction, sale, and
otherwise, in the Court of the Vice Warden of the Stannaries
of Cornwall, upon and in respect of the buildings, machinery,
plant, and materials belonging to such mines, and the ores got-
ten therefrom, as any other mining creditor has or may have :
Provided nevertheless, that no person shall be entitled tp bring
any action or suit, or take any proceeding for the recovery of
or obtaining any compensation for damage to be done under
the authority of this Act, or for any costs other than such
compensation or costs as shall be agreed upon between the
parties or shall be ordered by the said Vice Warden.
LXVI. And be it enacted. That any compensation to
become payable under this Act, whether by agreement or
otherwise, may, by the a<jreement of the parties, or at the
discretion of the said justices or Vice Warden respectively,
be made by the payment of an annual or other periodical
sum, to continue payable during the continuance of the pos-
session under sucn entry as aforesaid, or for any less period,
and to be determinable either upon the restoration of the
land entered upon to a state fit for cultivation, or at any
earlier period, and may be made to cover and include as
well past as continuing damage.
LXVII. And be it enacted and declared, That the Duke
of Cornwall shall not be liable to the payment of compensa-
tion for damage to be done by any lessee or other person in
or about any such searching or working for mines or mine-
rals imder the authority of this Act as aforesaid.
252 Appendix of Statutes,
LX V 1 1 1. Provided always nevertheless, and be it enacted,
That the provisions hereinbefore contained with respect to
the Duke of Cornwall and his lessees, and other persons
authorized by him, making compensation for the damage
(lone to the surface of lands and tenements, shall not appy
to any lands or tenements which by the said award shall be
determined to be waste or demesne lands of the manors
mentioned in the said first schedule hereunto annexed
respectively, or to any lands or tenements which at the res-
pective dates of the conveyances of the manors mentioned
in the said second schedule hereunto annexed were waste
or dcmertiie lands of the same manors respectively
LXIX. And be it enacted, Thut (subject and without
prejudice to the liens, rights, and remedies hereinbefore
given to the persons who may become entitled to compen-
sation for damage as aforesaid) it shall be lawful for the
Duke of Cornwall and his lessees, and ether the p»ersons
authorized by him as aforesaid, and his and their agents
and workmen, either to pull down, remove, and take away
or fill up all buildings, steam and other engines, machinery,
and things, pits, mines, dams, sluices, and works which may
be erected or fixed or opened or worked upon any lands
and tenements in pursuance of the provisions hereinbefore
contained, and which shall be no longer used for the pur-
I>oses aforesaid, or to allow the same to remain for any time
which the Duke of Cornwall or his lessees, or other the
persons authorized by him, shall think fit, after the same
shall have ceased to be used for the purposes aforesaid ;
and no buildings, mines, pits, works, or other things shall,
by non-user or otherwise, be deemed to be abandoned, so
as to vest any right or title therein in the owner of the
land, or to give any fresh right of compensation, on the
same being resumed or again entered upon and used.
LXX. Provided also, and be it enacted. That nothing in
this Act contained shall authorize or empower the Duke of
Cornwall, or any lessee or other person claiming under him,
to erect any building, or steam or other engine, machinery,
or thing, or sink or make any pit, shaft, air-hole, tram or
other road, or lay any ore, rubbish, or other thing, or to
enter into or upon the surface of any land which 3ie said
commissioners by their award shall certify to have been on
the first day of May one thousand eight hundred and forty -
four appropriated as a garden, park, or pleasure ground, or
as a dwelling house, or a yard or curtilage to any dwelling
house (and which they are hereby authorized and required
Statute 7^8 Vict, c, 110. 253
in and by such award to certify accordingly), and which
shall afterwards continue to be so appropriated, or in or
upon any land which may at any time hereafter at the time
of entry be actually and bond fide appropriated and used as
a dwelling house, or as a yard, curtilage, or garden attached
to a dwelling house, so long as the same shall continue to
be so appropriated and used, and so as no such yard, curti-
lage, or garden shall extend more than fifty feet from such
dwelling house.
Act 7 & 8 Vict. cap. 110.
An Act for the Registration^ Incorporation and Regulation of
Joint Stock Companies, [5th September, 1844].
LXIII. Nothing in this Act contained shall extend or
be construed to extend to any partnership formed for the
working of mines, minerals, and quarries, of what nature
soever, on the principle commonly called the cost book
principle (a).
(a) In this Act the only mention of mining partnerships occurs in
the proviso above reprinted, which was inserted at the instance of
tho!»e who were interested in mines within the Stannaries of Cornwall
and Devon. As it does not expressly refer to that district, it has been
since considered to extend to all mines wheresoever situate, in
which the adventurers profess to adopt what they call the " Cost
Book principle" or ** system.'* This and the statute 12 6l 13 Vict,
c. 108., have been partly reprinted here, and at p. 268, post, because
they have an important bearing on the 22nd section of the last Act,
18 Vict. c. 32. A noncompliance with an order made under that
section may deprive a company of any benefit it may derive from
the above exemption, or from the special provisions of the Act
12 6t 13 Vict. c. 108. s. 1.
254 Appendix of Statutes.
Act 11 & 12 Vict. cap. 83.
An Act to confirm the Awards of the Asseseionable JHfoMort
Commissioners^ and for other Purposes relating to ike
Duchies of Cornwall and Lancaster.
[31st August, 1848.]
VII. And whereas by an Act passed in the session of
Parliament holden in the sixth and seventh jears of the
reign of his late Majesty Kin^^ William the Fourth, intituled
An Act to make provision for the better and more expediiioms
AdminiHtration of justice in the Stannaries of Cornwall, and
for enlarging the jurisdiction and improving the practice and
proceedings in the Court of the said Stannaries^ provision is
made for the trial of causes pending in the same Court hj
a jury of twelve persons : And whereas actions prosecuted
in the said Court for the recovery of small debts are regu-
lated by special rules of practice difiering from the rules
applicable to other actions on the common law side of the
Court, and the matters in issue between the parties to such
actions may be well and conveniently tried by a less number
of jurors ; be it therefore enacted, That in all such actions
commenced after the passinjr of this Act for the recovery of
such small debts the number of jurors inipannelled and
sworn to try any issue shall be* five only, and not twelve,
and the jurors so sworn shall be required to give an unani-
mous verdict : Provided always, that no debt or demand
shall be deemed to be a small debt within the intent and
meaning of this enactment which shall exceed the sum of
twenty pounds or such other sum as shall hereafter be
determined by any Act of Parliament to be a small debt
within the jurisdiction of the County Courts established by
an Act passed in the session of parliament holden in the
ninth and tenth years of the reign of her present Majesty,
intituled An Act for the more easy recovery of small debts
and demands in England (a).
(a) This proviiiion was occasioned by the establishment of the
new County Courta in )846. The rules made by the Vice Warden
in 1836 first ebtabiished a form of procedure in the case of
Statute 11 Sf 12 Vict, c, 83. 255
VIII. And whereas it will not be necessary hereafter to
summon so large a number of persons to attend and serve as
jurors at the sittings of the said Court ; be it enacted, That
the Registrar of the said Court shall in future cause thirty-
six persons named in the jurors book to be so summoned, and
no more : Provided always, that, save and except as afore-
said, nothing herein contained shall be taken to alter the
practice of the Court, but all and every the powers, provi-
sions, and authorities contained in the last recited act touch-
ing jury process and proceedings on trials by jury shall
remain m full force, ana be applicable and applied as well to
trials by a jury of five as by a jury of twelve persons.
IX. And whereas no adequate provisions now exist for
the due appointment of bailitf's of the said Court (a) ; be it
enacted, That it shall and may be lawful for the Vice War-
den for the time being to appoint from time to time a com-
petent number of fit and responsible persons to be bailiffs of
the said Court for the service and execution of all process
on the common law side thereof and process of attachment
in equity, who shall give such s^urity for the due per-
formance of their duties as shall appear to the Vice Warden
sufficient in that behalf, and shall hold their offices during
his pleasure, and be entitled to demand and receive all lawful
fees due to them in virtue of their office of bailiff; and all
the powers, provisions and enactments of an act passed in
debts not exceeding 10/., differing from that of other common law
cases ; before that year no such difference existed in the Stannary
Courts, and the statute 6 & 7 Wm. 4. c. 106. rendered a jury of
twelve persons necessary in both cases. The number of small debt
causes was very considerable, until the greater simplicity and
economy of suits in the County Courts presented advantages to the
suitor, which the miner could not obtain in his own Court. It was
therefore considered desirable to disencumber the Court of some part
of its apparatus by reducing the number of jurors ; and this could
only be done by statute.
(a) There existed, ah antique, bailiffs attendant on each Stan-
nary for service and execution of process ; but the nature of their
tenure and appointment confined their service to Courts extinguished,
or essentially altered, by the act 6 & 7 Wm. 4. c. 106., and they
were no longer available for the Court newly organized by that act.
The duties of these bailiffs are adverted to in the report of Vice v.
Thomas, Appendix pp. 46, 97, 100. (Ed. 1843.)
256 Appendix of Statutes.
the session of Parliament holden in the seventh and eighth
years of the reiom of her present Majesty, intituled An Act
for Regulating the Bailiffs of Inferior Courts (a), so far as
the same touches and concerns the publication of lists of the
names and abodes of such bailiffs, and of the fees allowed
to them by law, the penalties for taking undue fees, the
remedies against bailiffs for extortion, misconduct, or not
duly paying or accounting for money levied, and the penalty
for assaulting bailiffs in the execution of their duty, or
rescuing persons or goods taken or levied under process,
shall be held and taken to apply and extend to the Court of
the Vice Warden of the Stannaries, and to the bailiffs ap-
pointed under the authority of this act ; and all constables
and peace officers shall, when required thereto, be aiding and
assisting in the execution of process by the said bailiffs within
their several jurisdictions : Provided always, that nothing
herein contained shall be construed to restrain the Vice
Warden from making from time to time such rules and
orders touching the office, duty and fees of bailiffs as are not
repugnant to this or any other Act of Parliament.
A. And because the provisions of divers Acts of Parlia-
ment of late made and passed for the relief of sheriffs and
other officers against adverse claims do not extend to the
Court of the Vice Warden of the Stannaries, by reason
whereof the bailiffs of the said Court will be exposed to
greater hazard and expense than similar officers in other
Courts, be it therefore enacted. That all the powers, provi-
sions and enactments of an act passed in the session of Par-
liament holden in the first and second years of the reign of
his late Majesty King William the Fourth, intituled An Act
to enable Courts of Law to give Relief against adverse
Claims made upon Persons having no Interest on the Sub/ect
of such Claims, so far as the same touches and concerns the
relief and protection of sheriffs and other officers in the exe-
cution of process against goods and chattels, and the entering
of record the proceedings taken under that act, and the
force and effect of rules and orders so entered, and the
issuing of execution for taxed costs, and the fees for exe-
cuting the same, shall be held and taken to apply and extend
to the Court of the said Vice Warden and to the bailiffs of
the said Court so appointed as aforesaid ; and it shall be
(a) Extracts from this act will be found, ante, p. 237.
Statute 11 Sf 12 Vict. c. 83. 257
lawful for the Vice Warden, or for the registrar of the said
Court, whether the Court be sitting or not, to make rules
and orders and to exercise the powers and authorities con-
tained in the said act for the relief and protection of such
bailiffs, and, with the consent of the execution creditor and
adverse claimant in any case, their attornies or agents, to
dispose of such claims on the merits, and determine the same
in a summary manner (a).
XI. And whereas by the before recited act passed at the
session of Parliament holden in the sixth and seventh years
of the reign of his late Majesty King William the Fourth the
Vice Warden is authorized to appoint a fit and proper per-
son to act as prqthonotary or assistant Registrar in the said
Court, with the yearly salary of two hundred pounds, and
it is expedient that a new arrangement should be made with
respect to the future discharge of the duties of such office ;
be it enacted. That when and so soon as the said office shall
become vacant by death, resignation or otherwise, it shall
and may be lawful for the Vice Warden for the time being
to appoint by writing under the seal of his Court two fit and
proper persons, who shall hold their offices at the will of the
Vice Warden, to be clerks of the said Court, and as such
clerks to do and execute, under the direction of the Vice
Warden and in aid of the Registrar, all duties now per^
formed by the said prothonotary or assistant registrar,
at and for the several yearly salaries of one hundred and
twenty pounds and eighty pounds respectively, such
salaries to be payable and paid at the times and in the
manner and out of the funds provided in and by the last
mentioned Act for the payment of the salary of the protho-
notary or assistant Registrar.
XII. And for the better protection of the officers of the
Vice Warden's Court in the performance of their duties, be
it enacted. That all actions brought in the superior or other
Courts against a judge, registrar, bailiff, or other officer of
the Court of the Vice Warden of the Stannaries, or against
others acting in aid of them, for anything done in execution
of the process or by the authority of the said Court, shall
be commenced within three calendar months next after the
(a ) The portions of the Interpleader Act referred to in this section
are sects. 1, 2, 3, 6 and 7. By sect. 13 of the Act 18 Vict. c. 32.
actions brought against the officers, or the plaintiffs in the original
suit, may be stayed. See po«t, p. 260.
258 Appendix of Statute*.
committing of the act or grievance complained of, nid aA
afterwards ; and it shall be competent for the defendant ii
any such action t«) justify, if need be, b^ alleging genenDf
in his pica or avowry that the act or matter complained il
was done in execution of the process or b^ the authoritf if
the Court of the Vice Warden of the Stannaries (a) rf
Cornwall, without further setting forth the authority rf(^
process of the said Court ; and the plaintiff shall be ps-
mittod to reply thereto generally, that the same wis aoM
by the defendant of his own wrong and without the came
alleged by him ; and u]x>n issue joined thereupon all the
matters and facts relie<l upon by the one party or the other
shall be admitted in evidence.
XIII. And be it enacted and declared, That all personil
property, goods, chattels, and eifects whatsoeyer, provided
or to be provided for the use of the said Court, or for the
use of the Vice Warden for the time being, or other officer
of the said Court, shall vest in his Royal Highness the
Duke of Cornwall in right of his duchy (c3.
Act 12 & 13 Vict. cap. 108.
An Act to amend the Joint Stock Companies WnuHftg^vp
Act, 1848. [1st August, 184^.
Whereas it is expedient to amend as after mentioned the
Joint Stock Companies Winding-up Act, 1848 : Be it
enacted by the Queen's most excellent Majesty, by and
with the advice and consent of the lords spiritual and tem-
poral, and commons, in this present Parliament assembled,
and by the authority of the same, That, notwithstanding
anything in the said Act contained importing a more
limited application thereof, the same shall apply to all part-
nerships, associations, and companies whereof the partners
or associates are not less than seven in number, whether
incorporated or unincorporated, and whether formed or
(a) Perhaps this should now be read " StaDnaries," without adding
** of Cornwall.*'
(6) " Of should be " or," ut semble?
(/*) This clause applies particularly to the furniture, books, and
moveables of the office and library, &c.
Statute 12 Sf 13 Vict. c. 108. 269
subsisting before or after the passing of the said Act or this
Act, other than and except railway companies incorporated
by act of Parliament, to which companies such Act shall
not apply : Provided always, that upon the hearing of any
petition for the dissolution of any such partnership, associa-
tion, or company, the Court shall, in considering the neces-
sity or expediency of any such dissolution, or the terms or
special directions subject to which it maj think fit to allow
such dissolution, have regard to any articles of partnership
or other contract which shall be subsisting between the
members of such partnership, association, or company :
Provided nevertheless, that nothing herein contained shall
affect the jurisdiction of the Court of Stannaries in Corn-
wall ; and that nothing in this Act nor in any Act herein
referred to contained shall extend or be construed to extend
to any partnership, association or company formed for the
working of mines on the principle commonly called the
Cost Book principle within the said Stannaries and juris-
diction of the said Court, unless the owner or owners of
one tenth in value of the shares in any such mine, as shall
appear on the Cost Book, shall present a petition to the
Lord Chancellor or to the Master of the Rolls for the
dissolution and winding up, or for the winding up, of the
affairs of such company, which petition, and the parties
thereto, and all proceedings thereupon, shall be subject to
the provisions of this Act and the Acts herein referred to ;
and that on such petition being so presented, and notice
thereof being given to the Vice Warden by the party
petitioning, the Court of the said Vice Warden, and the
Registrar and officers thereof, shall cease from entertaining
and dealing with any cause touching such mine, except so
far as may be allowed and directed by order of the Court
of Chancery, in regard to any cause then or to be thereafter
brought in the Court of the said Vice Warden, or in regard
to any proceeding to be taken in furtherance of the said
petition and the purposes of this Act and the Acts herein
referred to ; and that the said Vice Warden and Registrar,
in taking such proceedings, shall have all the powers which
any district commissioner of the Court of Bankruptcy now
has in any matter which by virtue of this Act and the Acts
herein referred to may be brought before him (a).
(a) Section 20 of the same Act makes the Vice Warden and
Registrar commissioners for taking evidence and examinations under
it. I'his provision has never been acted upon and seems unim-
portant.
260 Appendix of Statutes.
Act 18 & 19 Vict. cap. 32. (a).
An Act to amend and extend the Jurisdiction of the Stammnf
Court. [15tb June, 1855].
Whereas it is desirable to explain and amend the Acts
heretofore passed for the administration of justice in the
Stannaries, and to make the jurisdiction and process of the
(^ourt of the Vice Warden more efficient, and to r^alate
appeals from the Vice Warden : Be it enacted by the
Queen's most excellent Majesty, by and with the advice
and consent of the lords spiritual and temporal, and
commons, in this present Parliament assembled, and bj the
authority of the same, as follows :
I. Where any mine or sett within the Stannaries shall he
worked by the same adventurers not only for metallic
minerals within the jurisdiction of the Court, but also for
non-metallic minerals found in the same mine or sett, or
intermixed with metallic minerals, the entire mine and
works and products thereof shall be taken to be within the
cognizance of the Vice Warden as if the same bad wholly
consisted of metallic minerals, and the process of the Court
shall extend to and be exercised over the same and all the
machinery and materials thereon, as in the case of mines of
metallic minerals ; and the mineral called plumbago or black
lead is hereby declared to be a metallic mineral.
II. The words " mine" and " mineral" and " miner,"
when used in this Act, or in any pleadings, process, or pro-
ceedings in the said Court, shall, unless otherwise explained
or qualified, be respectively presumed and taken to mean a
metallic mine or mineral within the jurisdiction of the said
Court, and a miner in some mine, work, or adventure within
the same jurisdiction, and having privilege to sue or be
sued in the said Court; and the words *' County Court'*
shall in this Act mean any Court established under the
provisions of the Act passed in the session of Parliament
(a) This Act is strictly an Act passed in the 18th Victoria, and is
so cited in all the foregoing rules and orders of the Court; but in
the volume of statutes, published annually, it is printed, as usual, as
of the two years over which the session extended.
Statute 18 Sf 19 Vict. c. 32. 261
holden in the ninth and tenth years of the reign of her
present Majesty, chapter ninety-five, and also the Court
held under the provisions of *' The London (City) Small
Debts Extension Act, 1852."
III. In suits on the equity side of the Court of the Vice
Warden, prosecuted according to custom by the purser or
other principal agent of the adventurers in a mine in the
Stannaries against an adventurer or his personal represent-
atives for contribution to calls or to the expenses of working
such mine or adventure, it shall be lawful for the Vice
Warden, upon special application in that behalf, to order
that service of process on the defendant in any part of
England or Wales to compel appearance and answer shall
be sufficient service, although he may not then be personally
within the jurisdiction of the said Court ; and upon proof
of such service and the default of the defendant to appear
and answer the petition within the time prefixed by the
summons, it shall be lawful for the plaintiff to enter an
appearance for the defendant, and thereupon such proceed-
ings shall be had in the suit, and such orders and decree
made, as if the process had been duly served on the defend-
ant within the jurisdiction of the Court ; and if upon sale
of the shares or interest of the defendant in the mine or
adventure according to custom the proceeds of the sale
shall be insufficient to satisfy the debt of the defendant,
costs of suit, and expenses of sale, it shall be lawful to levy
the same or the residue thereof in the manner hereinafter
provided for enforcing decrees and orders on the equity
side of the Court ; and after appearance so entered, all
notices, orders, summonses, warrants, and other process in
the suit shall be deemed to be well served if served on the
defendant wheresoever he shall then be in England or
Wales.
IV. In all such suits against adventurers for contribu-
tion, it shall be lawful for the. plaintiff to join several
adventurers in one petition for recovery of their several
contributions, and for the Court to make one decree for
payment and one order for sale of shares, and to enforce
payment by separate process of execution against each
defendant, if need be ; and where the defendants or any of
them shall put in separate answers, it shall be lawful for
the Court to direct that all or any of the matters in issue
be heard and tried at the same time; provided that nothing
herein contained shall be construed to abridge or affect the
right of the plaintiff in such a suit, as now exercised, to
262 Appendix of Statutes.
proceed ogainnt adventurers residing or being oat of tbe
jurisdiction of the Court upon a service on the mine itadt
substituted bv order of the Vice Warden for penaid
service ; but in such case the plaintiff shaU not be entitled
to any other or further remedy for recovery of the anwB
of contribution in the Vice Warden^s Court from a defend-
ant so served than he had before the i>a88ing of this Act
V. In suits on the equity side of the said Court *hj cre-
ditors prosecuted according to -custom against the purser
or other principal agent of the adventurers, or against one
or more of the adventurers in a mine iu the Stannarieei
to enforce payment of their demands by sale of the oraii
machinery, materials, and effects for the time bdag
belonging to the adventurers, and being upon or about the
mine or fraudulently removed therefrom, it shall be lawftil
for the Vice Warden, upon special application in thrt
behalf, to order that service of process on the defendant in
any part of England or Wales to compel appearance and
answer shall be sufficient service, although he may not then
be personally within the jurisdiction of the said Court;
and upon proof of such service and of the default of the
defendant to appear and answer the petition within the
time prefixed by the Court, it shall be lawful for the
plaintiff to enter an appearance for the defendant, and
thereupon such proceedings shall be had in the suit-, and
such decrees and orders made, as if the process had been
duly served on the defendant within the jurisdiction of the
said Court ; and any adventurer shall, upon application to
the Vice Warden or Registrar, be let in to defend the suit,
either separately or jointly with the other defendant,
within twenty days after the filing of the petition, or within
such other time as the Vice Warden shall allow ; and where
several creditors of the same adventurers shall sue
separately for payment and sale the Vice Warden shall
have power to consolidate the suits in such way as shall
seem to him necessary or expedient for the convenient trial
of the matters in issue in the said causes and for the saving
of expense to the suitors ; and all further notices, orders,
summonses, warrants, and other process in the cause or
consolidated causes shall be deemed to be well served if
served on the defendant in any part of England or Wales ;
and if upon sale of the ores, machinery, materials, and
effects in any such suit the proceeds of the sale shall be
found insufficient to satisfy the debts of the plaintiff or
plaintiffs and of the other creditors who ffhall be admitted
Statute 18 Sf 19 Vict, c, 32. 263
according to custom to prove their debts before the Registrar
of the Court and the costs of suit and expenses of sale, it .
shall be lawful for the Registrar, at the instance of the
plaintiff in the suit or of any creditor so admitted to proof,
and by permission of the Vice Warden on an application by
the plaintiff or creditor stating the amount of debts
remaining unsatisfied and the number of adventurers,
whether within or out of the jurisdiction, so far as they can
be ascertained by the applicant, to proceed to apportion
the amount of debts, costs, and expenses remaining unsatis-
fied rateably among all the adventurers or persons liable
to contribute to the payment of the said debts, whether
they be within the jurisdiction or elsewhere, according to
the number of shares or the interest of each in the said
mine or adventure; and it shall be competent for the Registrar
to call for, and by summons and attachment withm the
Stannaries or subpoena under the seal of the Court to enforce,
production before him of the cost book or books, lists of
shareholders, accounts, bills, resolutions of the adventurers
or committees thereof, and all other books, papers, and
documents of the adventurers relating to the mine or the
management thereof, and by like summons and attachment
or subp<£na to call before him and to examine the purser,
managers, or other principal agents of the adventurers,
whether the several documents above mentioned or the
persons so called before him be within the Stannaries or
elsewhere in any part of England or Wales, and to make a
list of all the persons so liable to contribute at the time of
filing the petition or their personal representatives, with the
amount apportioned upon each ; and when the Registrar
shall have made such list and apportionment, a copy of the
list shall be sent to the account house of the mine, or the
principal office or place of business of the adventurers, and
notice shall be served on each person named in the list of
the sum charged upon him, and a reasonable time, to be
fixed by the Registrar according to the circumstances of
each case, shall be allowed to him to dispute the apportion-
ment before the Registrar, who shall hear and determine all
objections thereto ; and when the list shall have been finally
settled by the Registrar he shall report thereon generally
to the Vice Warden, and if the report shall be confirmed
upon exception or otherwise there shall be a decree for pay-
ment in conformity with the said report, and the several
sums so apportioned and charged upon each contributory
shall in and by the said decree be made payable to the
26-4 Appendix of Statutes,
Registrar, who shall forthwith demand payment thereof, and
thereupon it shall be lawful for the said plaintiff or creditor,
at whose instance the apportionment shall have been made
and decree obtained, after such demand and a refusal of
payment, to proceed to levy from each contriljutory in the
said list the sum therein charged upon him in the manner
hereinafter provided for enforcing decrees and orders on
the equity side of the said Court, and for this purpose the
said plaintiff or creditor Khali be deemed to be a party
entitled to the benefit of the said decree within the intent
and meaning of the said provision, and the sums received
or levied shall be forthwith paid over by him to the Registrar,
who shall deduct therefrom and allow to the party who
shall have so received or levied the same his reasonable
costs and expenses in and about the said apportionment
and obtaining the said decree and levying tne monies so
payable under it, and shall distribute the residue rateably
among the several creditors in the proportion of the debts
remaining due to them respectively : Provided always, that
all notices and demands required by this Act to be served
on or made upon adventurers and other persons named in
the Registrar's list as contributories shall be deemed to be
sufficiently served if sent by post prepaid, addressed to the
party at his last known address ; unless the Registrar shall
order that the same shall be served in some other way, in
which case service shall not be sufiicient unless it be in
conformity with such order.
VI. In suits on the equity side of the said Court for an
account as between adventurers in mines in the Stannaries,
it shall be lawful for the Court, upon special application in
that behalf, to order that service of process in any part of
England and Wales to compel appearance and answer shall
be good service on any adventurers or their personal repre-
sentatives, or others who may be necessary parties to such
suit, although they may not then be personally within the
jurisdiction of the said Court ; and upon proof of such
service, and of the default of any person so served to appear
and answer the petition within tlie time prefixed by the
summons, it shall be lawful for the plaiiitift'or plaintiffs to
enter appearances for the persons so served, and thereupon
such proceedings shall be had in the suit, and such orders
or decrees made, as if the process had been duly served
within the jurisdiction of tne Court, and the orders and
decrees so made shall be binding on all adventurers and
others so served ; and if the final decree shall be for pay-
Statute 18 Sf 19 Vict, c. 32. 265
ment of money or costs, payment thereof shall be enforced
in the manner hereinafter provided ; and after appearance
so entered all notices, orders, summonses, warrants, and
other process in the suit shall be deemed to be well served
if served in any part of England or Wales ; and in all such
suits where any adventurer holding a share in a mine or
adventure cannot be found, or is deceased and no one can
be found who has administered to his estate and effects, then
it shall be sufficient hj leave of the Court to substitute for
regular service a service on the mine in the usual way, or at
the principal office or house of business of the adventurers,
whether within the Stannaries or elsewhere in England
or Wales, and notice of such substituted service shall be
addressed by post to the last known address of the said
adventurer (except in case of his decease) and thereupon
decrees or orders of the Court in the suit shall be binding
on such adventurer or his representatives, and those claim-
ing under him, as in case of regular service.
Vll. In suits commenced on the equity side of the said
Court for causes relating to mines and minerals in the Stan-
naries, or to shares, interests, or adventures therein, whereof
the said Court has cognizance, in which it may be necessary
or expedient to sue or to join as defendant a person holding
or claiming to hold any share or interest in an adventure in
mines or minerals worked within the Stannaries, or being
an agent of the said adventurers, who cannot be found
within the jurisdiction of the said Court ; and in all cases
where any person who shall have commenced any suit or
entered an appearance in any suit in the said Court, or shall
have come in as creditor, claimant, or purchaser, or otherwise
submitted to the jurisdiction thereof, cannot, by reason of
his person or goods being out of the said jurisdiction, be
made amenable to the process of the Court ; and in all cases
where any party to such suit shall have died or become
bankrupt or insolvent, and his personal representatives or
assignees, or any of them, who may be necessary parties to
the continuance of the suit, shall be out of the said juris-
diction, it shall be lawful for the Court, upon special appli-
cation in that behalf, to order that service of any notice,
order, summons, warrant, or other process shall be deemed
good service on any such person, representative, or assignee
respectively in any part of England or Wales, and, if need
be, to order an appearance to be entered for the person
served ; and thereupon it shall be lawful to take sucn pro-
codings and to make such order or decree as if the service
had been made within the said jurisdiction.
2G6 Appendix of Statutes.
VIII. Where service of notices, orders, snminoiueflb
warrants, or other process in causes pending in the Vice
Warden's Court may, under this act or otherwiBe, lawfklly
be made in a place out of the jurisdiction of the said Coartr
it shall be lawful for the said Court, or for parties to
suits therein, to send the same to the high bailiff of the
County Court in the district of which such place maj be,
together with the lawful fees pnyable in like cases for senrioe
of similar process in the County Court, and thereapcm the
hin:h bailiff shall serve or cause to be served the same, tt^.
it had been issued out of a County Ceurt, and such service
shall or may be proved as in case of County Court process.
With respect to the execution of judgments and decreei
of the Court of the Vice Warden, be it enacted as follows :
IX. In actions commenced therein on the common law
side of the Court, where judgment shall have been duly
recovered in a cause whereof the said Court has cogni^
zance, but which cannot be conveniently or efiectually
enforced by the ordinary process of that Court within the
jurisdiction thereof, it shall be lawful for any one of the
Superior Courts of common law at Westminster, or for anj
judge thereof, upon application of the party entitled to the
benefit of such judgment, and production of a certificate
from the Registrar of the Court of the Vice Warden under
the seal of the Court of the judgment so recovered, and a
satisfactory affidavit of the ground of the application, to.
cause process to issue and proceedings to be taken for the
recovery of the amount due on the judgment, including the
costs of the certificate and of the application, in the same
manner as upon a like judgment recovered in an action
commenced in the superior Court ; and it shall not be ne-
cessary for this purpose, or for any other purpose, that the
record of any judgment in the Vice Warden s Court shall
be engrossed on parchment or enrolled ; and where the debt
or damages recovered by judgment of the Court of the Vice
Warden, or sought to be recovered in actions commenced
either by writ, plaint, or other legal procedure, according to
the practice of the said Court, shall not exceed fifty pounds,
and the judgment of the Court cannot be conveniently or
effectually enforced within the jurisdiction of the said Courts
it shall be lawful for the party entitled to the benefit of the
judgment to sue out a writ of execution, and to send the
same to the clerk of any County Court within the district of
which the judgment debtor or his goods and chattels shall
then be or be believed to be, with a warrant thereto annexed.
Statute 18 Sf 19 Vict. c. 32. 267
under the hand of the Registrar and seal of the Court of
the Vice Warden, requiring execution of the same, and
with the fees ^wfully payable in like cases for execution of
such a writ in the dounty Court ; and thereupon the said
clerk shall cause the same to be executed by the high bailiff
of the County Court in due course of law, as if the same had
been issued by the Court of which he is high bailiff (a), and
the said bailiff shall have the same powers and protection as
if he were executing the process of such County Court, and
shall make his return to the clerk of the said Court, and
pay over to him the amount levied, if any ; and the clerk
shall forthwith certify the said return, and remit the amount
so paid, less the costs of making such levy according to the
practice of the County Courts, to the party prosecuting the
writ; and the judge of the said County Court shall have
and exercise the same power and authority over the clerk
and high bailiff, and shall have power to adjudicate upon
summons of interpleader in case of adverse claims to goods
taken in execution, as if the execution had been under
the warrant of his own Court.
X. All decrees and orders made in causes on the equity
side of the Court of the Vice Warden, whereof the said
Court has cognizance, for payment of any sum or sums of
money, costs, charges, or expenses, shall and may be
enforced by a writ or writs of fieri facias or capias (6),
within the limits of the jurisdiction of the said Court, which
writs shall be in the form, as near as may be, of the like
writs issued to enforce decrees or orders for payment of
money made by the High Court of Chancery, and be
executed in like manner by the bailiffs of the Vice Warden's
Court ; and where any decrees or orders, whether for
payment of money or otherwise, cannot be conveniently or
effectually enforced by the ordinary process of the Court of
(a) See 9 & 10 Vict. c. 95., sects. 94, 95, 96, 97, 104, 106,
107, 109, and 13 & u'VicU c. 61 . s. 20, 21. See also County Court
Rules, 23, 24, 1 19 to 124. The fees and costs of execution, will be
found in the Table of Fees, authorized by order of the Secretary of
State, 15th November, 1850, and in sect. 106 of the Act 9 & 10
Vict. c. 95.
(h) The words ** or capias" were apparently inserted under the
erroneous impression that such a writ is issued out of the Court of
Chancery.
N 2
268 Appendix of Statutes.
the Vice Warden within the jurisdiction thereof^ it shall be
lawful for the High Court of Chancery, or for any judge
thereof, sitting: in Court or at Chambers, upon |he applicatioo
of a party entitled to the benefit of such decree or «»rder,
and production of a certificate from the R^istrar cyf the
Court of the Vice Warden under the seal of the Court of
the said decree or order, or of such part thereof as cannot
be 80 enforced as aforesaid, and a satisfactory affidavit of
the ground of the application, to make the said decree or
order, or so much thereof as cannot be enforced, a decree or
order of the High Court of Chancery ; and thereupon such
decree or order, or such part thereof as aforesaid, shall and
may be enforced by such proceedings and writs as would or
might have been taken or issued if the same had been
originally made by the High Court of Chancery, and all the
reasonable costs of and consequent upon such certificate
and application shall and may oe recovered as if the same
had been and were part of such decree or order ; and where
the said decree or order of the Vice Warden is for payment
of a sum or sums of money not exceeding in the whole the
sum of fifty pounds, it shall be lawful for the party entitled
to the benefit of the said decree or order to enibrce payment
thereof in the manner hereinbefore provided in the case of
a judgment on the common law side of the Court for reco-
very of a debt or damages not exceeding the «aid sum of
fifty pounds : Provided that nothing in this act contained
shall affect or prejudice the power of the Vice Warden to
enforce decrees or orders by process of attachment withm
the jurisdiction of his Court where the same may be now
lawfully exercised, or to order the sale of shares or interests
in mines or adventures in cases wherein such sale may now
be made by order of the said Court.
XI. When any claim is made to or in respect of any eoods
and chattels, or the proceeds or value thereof, sold or
intended to be sold under a customary decree of sale in a
mining creditor's suit by any landlord for rent or other
distramable demand, or by any other person not being a
party to the suit, it shall be lawful for the Vice Warden to
call upon the claimant by rule or order of the Court to
appear in person or by his attorney or agent in support of
t£e same either before the Vice Warden himself or before
the Registrar, and to state the nature and particulars of his
claim, who shall thereupon hear the allegations and receiye
the proofs offered as well by the claimant as by the plaintiff
in the suit, and, if the claimant and plaintiff shall agree on
^aiute 18 Sf 19 Vict, c, 32. 269
the facts of the case, shall then adjudicate upon the claim ;
and if the said parties shall not so agree, then the disputed
facts shall be ascertained by an action or issue to be tried
in the Vice Warden's Court, in such form as the Vice
Warden shall direct, and the Vice Warden shall then
adjudicate upon the claim ; or the Vice Warden or Registrar
shall have power, with the consent of the parties so before
him, their counsel, attornies, or agents, to adjudicate upon
and dispose of the claim in a summary manner : Provided
that in all cases, except in case of summary adjudication by
consent, it shall be competent for the Registrar, at the
request of the said parties, or either of them, to refer the
decision of the case to the Vice Warden ; and the Vice
Warden shall in all cases of such interpleader make such
other rules and orders in the matter of the said claim or
adjudication as between the said parties in respect thereof,
or of the costs of the proceedings, as to him shall seem fit
and reasonable.
XII. The adjudication of such claim, either upon hearing
or in default of the appearance of the claimant, shall be final
and conclusive between the said parties and all persons
claiming by, from, or under them ; and the adjudication,
and all rules and orders made thereupon, shall have the
force and effect of judgments or decrees of the Court,
and be enforced accordingly.
XIU. In cases of interpleader either on the common law
or equity side of the Court, upon application by the Regis-
trar, bailiff, or other officer of the Court, or of the plaintiff
in the original suit, and certificate by the Registrar of the
proceedings in the Court of the Vice Warden, and proof of
the service on such claimant of the rule or order calling
upon him to appear in support of his claim, any action that
shall have been or shall be brought in any superior or
inferior Court in respect of such claim against any officer of
the Court or person actins under his direction, or against
the plaintiff in the origin^ suit, may be stayed by the said
Court (a), or any judge thereof, who shall have power to
make such rules and orders touching the costs of tne action
80 stayed as shall seem fit and reasonable.
XIV. Provided that nothing herein contained shall
authorize the Vice Warden or Registrar to adjudicate upon
(a) The *' superior ur inferior Court" in which the action is
brought.
270 Appendix of Statutes,
any claim, either on the common law or eqaitj side Qi£^
Court, touching the freehold or inheritance of anj perMD,
except by consent of the parties before the Court, and as
between and against themseWes and those claiming under
them.
XV. It shall be lawful for the Vice Warden to entertain
jurisdiction in suits for recovery of the possession of mines
within the Stannaries, and of buildings, machinery, works,
and waters annexed thereto and occupied therewith, on the
ground of breach of condition, determination of the sett or
lease, or other lawful or customary cause of forfeitore, and
also to prohibit the working of an^ mine in a manner
contrary to custom or covenant by injunction in cases and
under circumstances in which the High Court of Chancery
or the Courts of common law (a) at Westminster may now
by law enjoin ; and the suit for recovery of possession shall
be by action of ejectment on the common law side of the
Court, according to the forms and procedure established by
the Common Law Procedure Act, 1852, so far as they are
or can be made applicable to the Vice Warden's Court ;
and it shall be lawful for the Vice Warden to cause all
necessary writs to be served on the persons in possession or
entitled to defend, wheresoever they may then be in England
or Wales, and to adopt any of the general rules and orders
of the said superior Courts promulgated from time to time
and applicable to the action of ejectment with sucb varia-
tions as the nature and constitution of the Court shall
render necessary; and all constables and peace oflScers
within their several jurisdictions shall be aiding the bailifis
of the Court in the execution of the writ or writs awarded
for recovery of the possession and costs, and in enforcing
process of attachment in the case of breach of injunction ;
provided that nothing herein contained shall authorize the
Vice Warden to entertain any question touching the free-
hold or inheritance of any person except by such consent
and as between and against such parties as aforesaid.
XVI. Whereas actions for debts not exceeding fifty
pounds are now prosecuted summarily, and tried by five
jurors only on the common law side of the said Court, and
it is expedient that the like process and trial be extended
to other actions, whether for debt or damages : Be it there-
fore enacted, That all or any actions for debts or damages
(a) See CommoD Law Procedure Act, 1854, sect. 79, et seq.
Statute 18 Sf 19 Vict, c. 32. 271
not exceeding fifty pounds, whether founded on tort or
contract, for causes within the jurisdiction and cognizance
of the said Court, shall be prosecuted in a summary way by
plaint, and tried by a jury of five jurors, as is now used in
actions for small debts in the said Court, except in cases
where the Vice Warden shall permit or direct such action
to be by writ of summons ; and for the purpose of improv-
ing the procedure in such actions by plaint, it shall be lawful
for the Vice Warden to make and enforce rules and forms
for procedure, practice, pleading, and taxation of costs, and
to aidopt all or any of the rules and forms now or hereafter
legally in force and use in the County Courts, with such
alterations as may be necessary to adapt them to the juris-
diction of the Vice Warden's Court.
Xyn. Where any cause touching the usage or customs
of mining or of miners, or the principles and incidents of
cost book partnership or of cost book mines, or the privi-
leges and franchises of tinners or miners, or the eifect and
operation of setts or licenses to mine or contracts for the
sale or transfer of shares in mines, or the custom of tin
bounds or the nature and incidents thereof, shall be pending
before one of the judges of the County Courts within the
Stannaries, the said judge shall, at the request of either
party, have power to remit the said cause for trial or hear-
ing before the Court of the Vice Warden, who shall there-
upon have all the same powers and jurisdiction with respect
to the cause as if it had been commenced by plaint in the
Court of the Vice Warden, subject to the likie appeal as in
other causes so commenced.
XVm. Demurrers for matter of form only shall not be
permitted in the Court of the Vice Warden, and on the
equity side of the said Court no demurrers or pleas shall be
permitted except demurrers (a) for that the suit or subject
thereof is not within the cognizance or jurisdiction of the
said Court ; and if the objection of want of jurisdiction
shall not be raised by demurrer or plea within ten days after
appearance in a suit on the equity side, or within ten days
after notice of declaration (li) or service of a copy of plaint
(a) The words "or pleas" have evidently slipped out of the
printed act here. The rest of the context shews this.
(6) The new writ of ejectment is prosecuted to trial without any
declaration ; but it is apprehended that as the old proceeding by
service of a declaration was held to be in the nature and place of a
*J72 Appendix of Statutes.
un tlie common law side, no question as to the jarisdictiDi
of the Court shall thereafter be raised, except in csmi
whore the want of juriiuliction will disable the Court fimD
doing full and substantial justice between the parties to the
8uit ; and the mode of fding or serving demiirrers or pies*
to the jurisdiction shall be rcgtdated by general roles md
orders made as hereinafter pnivided, and so much of seotios
thirteen of the act y)as8ed in the session of Parliament
holden in the sixth and seventh years of the reign of Willim
the Fourth, chapter one hundred and six, as relates to
picas and doiiiurrers to the jurisdiction, and so much of the
act passed in the sixteenth year of the reign of Charles
the First, chapter fifteen (a), as relates to the form and
manner of objecting to the jurisdiction of the Stannary
Courts, or is at variance with this act, shall be and is hereby
repealed, except as to suits commenced before the passing
of this act.
XIX. The Registrar of the Court of the Vice Warden
shall have power at all times before hearing or trial, either
on the common law or equity side of the said Court, to
make orders for amending tne proceedings or pleadings
upon terms or unconditionally, to near and determine appli-
cations for further time, objections for defect of form, or on
the ground of uncertainty, obscurity, prolixity, or multifa-
riousness, and to make rules and orders in idl such other
interlocutory matters as shall be submitted or referred to
him by consent of parties, or which he may be directed or
empowered to hear and determine or deal with, by any
general rules or orders made under the authority of this
act ; and the said several matters shall be heard and deter-
mined ore fenus in a summary way, subject howeyer to
appeal by motion to the Vice Warden, either ore terms or on
a written statement agreed upon by the parties or drawn
up by the Registrar and submitted to the Vice Warden.
XX. The vice Warden shall have power, with the con-
writ, so the new writ may be regarded, for the purpose of pleading
to the jurisdiction, as a declaration, inasmuch as it gives to the
defendant all the information necessary to enable him to ascertaia
whether the cause is within the jurisdiction.
(a) This act, though it wholly relates to the Stannary jurisdiction,
is no longer of any practical value, and is therefore not included m
this collection.
Statute 18 Sf 19 Vict, c, 32. 273
sent of the parties to any suit, their counsel, attomies, or
solicitors at law or in equity, to order the same, with or
without other matters in dispute, to be referred to arbitra-
tion, or to act as such arbitrator himself, at the request of
the said parties, in such manner and on such terms and
conditions as he shall think fit, with all the usual powers
of arbitrators, under references by order of the superior
Courts ; and such reference shall not be revocable by either
party except by consent of the Court ; and the Vice Warden
shall have power to set aside the award for cause shown, or
to refer the case back again to the arbitrator, and the final
award made in pursuance of such reference shall, on the
motion of either party, be entered as the decree or order
of the Court, or judgment shall be entered in pursuance of
such award, as the case may be ; and the decree, order, or
judgment so entered shall thereupon be enforced as if the
same had been made or entered in the ordinary course of
procedure at law or in equity, as the case may be.
XXI. It shall be lawful for the Vice Warden, at the
request of one or some of the parties to a suit, and subject
to such terms as to costs or otherwise as he may think fit
and reasonable, to adjourn or hold his Court to or at any
place within the Stannaries for the purpose of hearing wit-
nesses or taking evidence ; and in such cases it shall not be
necessary for the Registrar or secretary of the Vice Warden
or prothonotary of the Court to be in attendance at the
sittmgs of the Vice Warden at such place.
XXIL In all cases of mines in the Stannaries worked by
partnerships or companies of adventurers professing to adopt
or to \)e constituted on the cost book system or principle,
it shall be lawful for the Vice Warden, upon application of
any adventurer or shareholder in the mine or creditor of
the adventurers, founded on sufficient grounds verified by
affidavit, although no suit be pending touching the said mine
or adventurers, to compel production by rule or order of a
list or lists of all adventurers or shareholders for the time
being by the purser or other principal agent or manager,
clerk, or secretary of the mine, and whether such person be
then within the jurisdiction of the Court or elsewhere, for
inspection of the applicant ; and if such list shall not be
produced, showing truly the name, address, and number of
shares of each and every adventurer or shareholder, and
the time when each became an adventurer or shareholder,
so far as the same are known or can be ascertained, then it
shall be lawful for the Vice Warden at his discretion, after
N 3
274 Appendix of Statutes.
fourteen days preyious notice of his intention serred on tlie
Eirson so ordered to produce, and also affixed to the Account
ouse of the mine, or left at the principal office or house of
business of the adventurers within the Stannaries or dee-
where, to declare that the partnership or company is not
carried on or constituted on the cost book system or prin-
ciple ; and the said partnership or company shall thereapon
no longer be deemed or taken to be for any purpose a part*
nership, association, or company within the exemption of
mining partnerships contained in the Act passed in the
present reign, entitled An Act for the Registration^ IneoT"
poration, and JReguIation of Joint Stock Companies^ or within
the conditional exemption contained in the Joint Stock
Companies Winding-up Amendment Act, 1849 (a) ; and in
all cases of like mines and partnerships, it shall be lawful for
the Vice Warden, upon application of any adventurer or
shareholder founded on sufficient grounds and affidavit,
and although no suit be then pending, to make a rule or
order for production of the cost books of the mine, list of
adventurers, and such other books and documents relating
to the mine and management thereof as the Vice Warden
shall think proper, for inspection of such applicant, and to
enforce such rule or order by attachment within the Stan-
naries, or by causing the same to be made a rule or order
of one of the superior Courts at Westminster under the
statute (^ in such case made and provided.
XXnL Whereas the power of the Vice Warden to make
general rules or orders of Court is insufficient, and it is
doubtful whether it extends to the adoption of imjirove-
ments in the procedure of the superior Courts recently
made by Parliament, or of rules and orders made from time
to time by the superior Courts by the authority of Parlia-
ment : Be it therefore enacted, That it shall be lawful fbr
the Vice Warden to make from time to time new rules and
orders touching the procedure, practice, pleadings, regu-
lation of Court fees, and taxation of costs, both on the
common law and equity side of the said Court, and all other
business of the said Court, and to prescribe forms for car-
rying into efiect such new rules and orders, and also existing
rules and orders not varied or repealed, and also to adopt
all or any of the provisions contained in the Act passed in
(a) These Acts are shortly cited, so far aa relates to Cost-book
mines, antet pp. 253, 258.
(//) That is, 6 & 7 Wm. 4. c. 106., sect. 12, ante.
Statute 18 Sf 19 Vict. c. 82. 276
the session of FarKament holden in the fifteenth and six-
teenth years of the reign of her present Majesty, chapter
eighty-six, and in the Common Law Procedure Act, 1852,
and m the Common Law Procedure Act, 1854, and all or
any of the rules and orders from time to time made and
promulgated by the superior Courts by and under the
authority of the said Acts or otherwise, with such modifica-
tions as may be necessary to adapt them to the jurisdiction
of the Vice Warden's Court ; provided that no such rules,
orders, forms, or provisions shall be made, prescribed, or
adopted without the consent and approval of one of the judges
of the superior Courts of common law at Westminster in
the case of rules, forms, and provisions applicable to the
common law side of the said Court, or of the Lord Chan-
cellor or one of the judges of the Hi^h Court of Chancery
in the case of orders, forms, and provisions applicable to the
equity side of the said Court ; provided also, that nothing
herein contained shall be construed to abridge or restrain
any existing power of the Vice Warden to make rules or
orders in cases not requiring the consent or approval of any
judge of the superior Courts (a).
A.XIV. When the Vice Warden shall be prevented by
illness or accident from attending and sitting on the day
appointed for such sitting, it shaU not be necessary to send
any statement to the Lord Warden of the cause of his non-
attendance or of the adjournment of the Court, unless the
Vice Warden shall be, or it shall appear to him probable
that he will be, thereby prevented from sitting within the
period required by law ; and if, for the reason aforesaid, it
shall be necessary to appoint a deputy, it shall be lawful for
the Vice Warden to appoint such deputy, qualified as now
required by law, for tne then next sittings only, provided
the cause aJleged in such statement be allowed by the Lord
Warden to be sufficient and the person so named as deputy
be approved by him ; and whenever it may be desirable to
alter the time fixed for holding the Court, it shall be lawful
for the Vice Warden to accelerate or postpone the holding
thereof, provided that such alteration be duly notified and
published in the usual .way, and the holding be not post-
poned beyond the third calendar month next after the calen-
dar mon& in which the last preceding sittings were held.
(a) See note to sect. 5 of Act 2 & 3 Vict. c. 58., p. 234, and
note (6), p. 216.
276 Ap^pendix of Statutes,
and no irregularity in the time of holding any Conrt or
sitting shall vitiate or avoid the proceedings at such Court
or sitting (a).
XXV. And because doubts may arise as to the allowance
of certain disbursements and payment of arrears of salaries
on the auditing of the Registrar's accounts, be it enacted,
That upon such audit there shall be allowed annually, in
respect of the expenses of advertising and holding Courts in
Cornwall, summoning jurors, enforcing payment of assess-
ments, lighting, warming, cleaning, watching, and keeping
the Court and offices there, providing furniture, books,
stationery, and printing, and such additional accommodation
or occasional assistance in the office as the Vice Warden
shall consider reasonable or necessary (6), a sum not ex-
ceeding the sum of one hundred and twenty pounds ; pro-
vided that if hereafter the expenses of the sittings and
Court shall become larger by reason of increased business,
more frequent sittings, or other causes, it shall be compe-
tent for the council of the Prince of Wales, or special com-
missioners for managing the affairs of the duchy for the
time being, to authorize a larger allowance, not exceeding
in the whole two third parts of the fees of Court that shi£
come into the hands of the Registrar during each year : and
whereas it has happened, and may again happen, that the
monies arising from fees and assessments, and available for
the payment of the official salaries charged on them, hane
been or may be insufficient to pay the current salaries when
the same become due : therefore when the Registrar shall
account to the Vice Warden for such monies, there shall
be allowed to him thereout not only the portion of salaries
due in respect of the half year then last past, but also all
or any arrears of salaries remaining unpaid on preceding
accounts.
XXVI. The provisions contained in the Act passed in the
session of Parliament holden in the sixth and seventh years
of the reign of King William the Fourth, chapter one
hundred and six, and in the Act passed in the session of
Parliament holden in the second and third years of the
reign of her present Majesty, chapter fifty-eight, touching
appeals to the Lord Warden, shall be repealed, and hence-
forth from all decrees and orders of the Vice Warden on
(a) See sect. 7 of 2 & 3 Vict c. 58., p. 235.
(6) See ante, sect. 27 of 6 & 7 Wm. 4. c. 106., p. 221.
Statute 18 Sf 19 Tict, c. 32. 277
the equity side of his Court, and from all judgments of the
Vice Warden on the common law side thereof, there shall
lie an appeal to the Lord Warden, who shall have power to
affirm, vary, or reverse the decree, order, or judgment
wholly or in part, or to dismiss the appeal, or to direct a
rehearing or a new trial in the Court below, and to make
such order or orders touching the costs in the cause as to
him shall seem fit, and the decree, order, or judgment of the
Lord Warden on such appeal shall be remitted to the Vice
Warden, to be by him carried into effect and enforced, if
need be, according to the course and practice of the Court;
and upon hearing such appeal it shall not be competent for
the parties to produce fresh evidence in the cause, or to call
upon the Lord Warden to hear any witnesses in the cause,
unless he shall in his discretion think fit to do so ; but the
decree, order, or judgment of the Lord Warden may pro-
ceed on the state of facts appearing on the notes of the trial
below certified by the Vice Warden or agreed upon by the
parties; and the Vice Warden shall certify such notes
accordingly, and transmit to the Lord Warden a record of
the proceedings in his Court, and all documents and papers
in the cause in the custody of the Court ; and the parties
before the Lord Warden shall produce all the documents
and papers produced on the trial below. On the hearing
and decision of the appeal the Lord Warden shall be assisted
by two or more assessors, who shall be members of the judi-
cial committee of the privy council or judges of the high
Court of Chancery or Courts of common law at Westmin-
ster; and the decree, order, or judgment of the Lord
Warden in the Court of appeal so constituted shall be sub-
ject to a final appeal to the judicial committee of the privy
council, who shall have power to hear and determine the
same : And it shall be lawful for the Lord Warden to remit
a cause pending before him on appeal at once for the deter-
mination of the said judicial committee, without pronouncing
any previous judgment thereon : Provided that no appeal shafi
be allowed in any case where the debt or damages sought to
be recovered shall not exceed twenty pounds and where no
question of jurisdiction or of the custom of mining or miners
snail have arisen in the Court below, nor shall any appeal
operate to stay proceedings or be allowed, unless the party
appellant shall notify in writing to the Registrar, within
thirty days after notice of the decree, order, or judgment
appealed against, his intention to prosecute an appeal, and
shall then give or offer to give security by bond to the Ke*
278 Appendix of Statutes.
ffistrar to prosecute the same within a time prefixed bj the
Court, and to abide by and perform the mial oider and
award of the Court of appeal, which bond ahali not leqaiR
to be 8tam[>ed ; and it shall be lawful for the Lord Warden,
with the approval of two or more members of the Judidil
committee of the privy council or judges of the hign Govt
of Chancery or of the superior Courts of common uw, ham,
time to time, to make any general rules and ordos fitf
regulating the practice, fees, and costs on appeals pendiiif
before him, not mconsistent with the provisions of tnis Act
XXVII. The penalties incurred by the head manager of
any mine by reason of his omission to make such retmni
of metals and minerals, or the value thereof or sadh pay-
ments in respect thereof as he is now required by law to
make, sliall be assessed and imposed by the Vice Warden;
and such penalties and all fines and penalties lawfnllj im-
{KNted and levied by authority of the Vice Warden for any
default or nonattendance of jurors, misdemeanor of bailin
or other officers, contempt of Court, or other cause whatso-
ever, shall be paid to the Registrar of the Court, and finrm
part of the fund for payment of expenses and salaries, and
such fines and penalties shall be levied within the Stan-
naries by Jieri facias issued by order of the Vice Warden^
on complamt of the Registrar, and summons and hearing in
a summary way ; and, if the offender be not found wiuiin
the Stannaries, shall be levied, on like sunmions and hearing
or default of appearance, in the manner hereinbefore pro^
vided for enforcmg execution of judgments on the common
law side of the Court.
XXVIII. And whereas by the tenth section of an Act
passed in the Parliament holden in the second and third
years of the reign of her present Majesty, chapter fifty-
eight, it was enacted, that certain frauds committed by
workmen in mines in the county of Cornwall should be
deemed felonies, and should be punished as in cases of
simple larceny : And whereas it is desirable that that enact*
ment should be extended to the county of Devon : Be it
therefore enacted, That for the prosecution and punishment
of frauds in mines by idle and dishonest workmen removing
or concealing ore for the purpose of obtaining more wages
than are of right due to tibem, and thereby defrauding the
adventurers in or proprietors of such mines, or the honest
and industrious workmen therein, if any person or persons
employed in or about any mine within tne county of Devon
shflul t^e, remove, or conceal the ore of any metal, or any
Statute 18 Sf 19 Ttct. o. 32. 279
lapis calaminaris, manganese, mundick, or other mineral found
or being in such mine, with intent to defraud the proprietor
or proprietors of or adventurer or adventurers in such mine,
or any one or more of them respectively, or any workman
or miner employed therein, then and m every such case
respectively such person or persons so offending shall be
deemed and taken to be guilty of felony, and being convicted
thereof shall be liable to be punished in the same manner as
in the case of simple larceny.
XXIX. The Vice Warden of the Stannaries for the time
being, whose name shall or may be inserted in any commis-
sion of the peace for the county of Cornwall, shall be quali-
fied to act in the execution of the office of justice of the
peace for the said county, although he may not have such
qualification by estate or interests in lands, tenements, or here-
ditaments as is now enjoined by law in the case of other like
justices ; provided that he be not discjualified to act for any
other cause or upon any other occasion than in respect of
the want of such estate or interest.
XXX. The following parts and provisions of the Act
passed in the session of Parliament holden in the sixth and
seventh years of the reign of King William the Fourth,
chapter one hundred and six, shall be and the same are
hereby repealed ; that is to say, sections five, eleven, and
fourteen, and so much of section seven as relates .to appeals,
and the words ''''Nm Prius^^ shall be considered as struck
and omitted out of section eight : The following parts and
provisions of the Act passed in the session of IParliament
holden in the second and third years of the reign of her
present Majesty, chapter fifty-eight, shall also be and the
same are hereby repealed; that is to say, sections three,
four, and nine, and the proviso in section two ; but no acts
done or rules or orders made by authority of tlie provisions
so repealed shall be thereby affected or made void,
XaXL Whereas it will be convenient that the office of
the Duchy of Cornwall should be put on the same footing as
certain public offices in the transaction of law business :
Be it enacted. That whenever any person shall be ap-
pointed by his Royal Highness the Prince of Wales, or
other the Personage for the time being entitled to the
possessions of the duchy of Cornwall, to act as attorney or
solicitor in the affairs of the said duchy, it shall be lawful
for such person to act and practise as such attorney or solicitor
in such affairs in all and every Court, jurisdiction, and place
in any and every part t)f the United kingdom, any statute,
280 Appendix of Statutes.
order, rule, usage, or custom relating to attornies or solici-
tors, or the admission, inrolment, or practice of attomiee or
solicitors, to the contrary notwithstanding.
XXXII. And whereas it has been represented that the
adventurers, miners, and others interested in mines in
the county of Devon would be benefited by the eztensiaii
of the Stannary Court jurisdiction into that county, and are
willing to be contributory to the expenses of such extension,
in the manner hereinafter provided : Be it therefore enacted
as follows: — The jurisdiction of the Court of the Vies
Warden shall henceforth be extended and exercised over
the county of Devon, and over the mines and miners therein,
and the process of the said Court, both at common law and
in equity, shall run in and be executory throughout the
counties of Devon and Ccmwall, and the forms and customs
of procedure as now lawfully used and exercised in the
Stannaries of Cornwall (subject nevertheless to such amend-
ments or provisions as are contained in or may be authorized
by this Act, and to all other lawful rules and orders of the
Court,) shall henceforth be adopted, used, and enforced in
and throughout the Stannaries and county of Devon, and
the Stannaries of the said two counties shall be and become,
for the purposes of Stannary jurisdiction, one entire dis-
trict, and the present and all future Vice Wardens of the
Stannaries shall be Vice Wardens of the Stannaries of and
for both counties, and shall have therein all the like powers,
privileges, authority, and jurisdiction over and in respect of
mines and miners, and causes touching the same, in Devon
as in Cornwall, and all miners and others interested in
mines in Devon shall have the privilege to sue and be sued
at law and in equity in the Court of the Vice Warden, and
be amenable to the said Court and Vice Warden, as well by
reason of the person as of the cause, in like cases and for
like causes in and for which the miners and others in-
terested in mines in Cornwall now have such privilege or
are amenable to the said Court and Vice Warden : Pro-
vided always, that the common law jurisdiction of the Vice
Warden in respect of causes of action arising in Devon
shall not extend to or be exercised in the county of Devon
or to or over miners therein, except in causes and in respect
of matters relating to mines or the products thereof or work
(works f) connected therewith, or to the working or
management thereof, or the supply of materials, money, or
necessaries, or performance of work and labour to, for, or in
respect of such mines or works, or relating to the customs
Statute 18 Sf 19 Vict, c. 32. 281
of mining or miners, or to shares or interests in any mine
or adventure in mines («).
XXXIII. And whereas it will be convenient that provi-
sion should be made for periodical sittings of the Court in
Devonshire as well as in Cornwall : Be it enacted, That if
and when it shall appear to the council of his Royal High-
ness the Prince of Wales, or the special commissioners for
managing the affairs of the duchy for the time being, that
the revenue annually arising from the assessment herein-
after authorized on mines in Devonshire will amount to the
sum of three hundred and twenty pounds at the least, over
and above the expense of collection, the said council or com-
missioners shall nave power to direct that sittings be held
by the Vice Warden in Devonshire, and thereupon the Vice
"Warden shall so sit, either by adjournment from Truro or
otherwise, at least four times m each year, as he has hereto-
fore been- accustomed to do in Cornwall, and he shall hold
his sittings either at Plymouth, Devonport, or Stonehouse,
in the said county, as to him shall seem fit, subject to the
power of adjournment in certain cases, as hereinbefore pro-
vided ; and for that purpose shall have authority to use and
occupy the public halls of the said boroughs, or some other
convenient building provided for such sittmgs, at such con-
venient times and in such way as may not interfere with
other necessary public business usually transacted therein ;
and in that event the said council or commissioners shall
direct in what manner, and on what conditions, terms, and
tenure, monies arising from such assessment, or any part
thereof, shall be appropriated, either among the present
officers of the Court and their successors, or to the deputies
who (with the assent and approval of the Vice Warden)
may be employed by such officers to execute their duties or
any part of their duties, when the Court shall be sitting in
Devonshire, or to new or additional officers and clerks, or
towards the general expenses of the Court, so as best to
secure the due performance of the additional duties and
increased business occasioned by the extension of the juris-
diction, and to indemnify the present officers of the Court
for any expenses to which they may be put by attendance
elsewhere than at Truro; and payment shall be made accord-
(a) This proviso, being a statutable exclusion of all causes at
commoD law from the cognizance of the Court, except those
specified, will probably be considered to make a plea or demurrer
to the jurisdiction unnecessary where the cause is not among the
excepted ones.
282 Appendix of Statutes.
iiig to such appropriation ; and it shall be competent for the
council or commissioners, at the recommendation of the Vice
AVarden, to vary such appropriation, havin^^ due regard to
the exigencies of business in the said Court, and the amount
of funds applicable to the expenses thereof.
XXXI V. There shall be a collector of the assessmoits m
the county of Devon, to be appointed by the Vice Warden,'
with like (futies and liabilities as in Cornwall, who shall recerre
for such collection, out of the monies so collected, an anmnl
sum not exceeding thirty T)ounds, and shall hold hia oflke
at will, and it shall be lawful for the Vice Warden to appoint
the same person to be collector in both counties, and tt>
appoint badiffs for service and execution of process through-
out the whole district of both Stannaries.
XXXV. All jury trials, whether in actions, suits, -or
plaints, on the common law side of the Court, arising in the
county of Devon, or in issues from the equity side, shall be
by persons qualified to serve as jurors before the justices of
assize and >lisi Trius in the said county; and for making
out lists of such jurors, and summoning them, the Vice
Warden shall have and execute the like powers as in Corn-
wall ; and the persons so qualified to serve shall be liable to
challenge, and amenable to the process of the said Court,
and enjoy the same exemptions in respect of their attend-
ance and service as in the Stannaries of Cornwall : Provided
nevertheless, that until the Vice Warden shall receive the
directions of the said council or commissioners, as above
provided, to hold sittings in the county of Devon, it shall
not be obligatory on him to hold any sittings there, nor shall
it be obligatory on persons qualified to serve as jurors in the
Vice Warden's Court in Devonshire to give their attend-
ance as such at any Court held by him in that county
or elsewhere, nor shall any cause arising in Devonshire,
and pending before any County Court judge there, be
remitted for trial or hearing before the Vice Warden, as
hereinhciore provided; and in the meantime the said
council or commissioners shall direct in what manner and
in what proporticms the revenue arising from fees and
assessments in resj)ect of causes and mines in the county of
Devon shall be u]>))lied towards Court or office expenses, or
payment of the present or additional official salaries.
A.XXVI. And for the purpose of providing for the
expenses attendant upon the extension of the jurisdiction
of the Court into Devon, there shall be an assessment of a
farthing in the pound on the value of all metals and mine-
Statute 18 Sf 19 Vict. c. 32. 283
rals in that county, as in Cornwall, and all the enactments
contained in this and any other Act of Parliament for
obtaining and enforcing returns, and levying and collecting
the said assessment, in Cornwall, shall be taken to apply to
the like assessment in Devon and the collector thereof shall
account for all monies received by him as in Cornwall, and
such assessment shall begin at the passing of this Act, and
be collected for the first time at the end of three calendar
months next after the passing of this Act ; provided, that
whenever it shall appear to the Vice Warden, on auditing
tike Itegistrar^s accounts, that there is a balance in hand
su^cient to meet all authorized payments for the next half
year, the like notice thereof and suspension of assessment
shall take place as in the assessment in Cornwall ; and the
Registrar of the Court shall keep a separate account of all
fees and monies coming into his hands in respect of causes
and matters arising in the county of Devon, and in respect
oif the assessment of metals and minerals in that county,
aad shall render accounts to the Vice Warden as in Corn-
wall, and shall be allowed in his half yearly account, as well
the additional salaries and suras lawfully chargeable thereon,
as hereinbefore provided, as the reasonable and needful
expenses of advertising and holding Courts and summoning
jurors in the county of Devon (if any be held), and of
lighting, warming, cleaning, watching, and keeping the
Court, and an office there (if any), and other like petty
expenses, as allowed in the county of Cornwall, and the
amounts so audited shall be filed, and be open for inspection,
as is now used in the said Court.
XXXVII. Persons committed to prison by the Vice
Warden in respect of causes or contempts in the county of
Devon shall be committed and taken either to the county
gaol at Exeter or the borough gaol of Plymouth or Devon-
port, as shall appear to the Vice Warden most expedient in
each case, and shall be received, dealt with, maintained,
supported, and provided for as if they had been committed
to those prisons by like process out of the superior Courts
of law or equity at Westminster, or by any Court of civil
jurisdiction held in or for the borough of Plymouth or
Devonport.
XXXVIII. Whenever it shall hereafter appear that a
sufficient fund shall be provided in the Stannaries of Devon
for the establishment of a permanent separate Court and a
separate office and officers in and for a Vice Warden's
Court in the county of Devon, it shall be lawful for her
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